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O. Reg. 72/22: GENERAL MATTERS UNDER THE AUTHORITY OF THE LIEUTENANT GOVERNOR IN COUNCIL

filed February 14, 2022 under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

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ontario regulation 72/22

made under the

Child, Youth and Family Services Act, 2017

Made: February 10, 2022
Filed: February 14, 2022
Published on e-Laws: February 14, 2022
Printed in The Ontario Gazette: March 5, 2022

Amending O. Reg. 155/18

(GENERAL MATTERS UNDER THE AUTHORITY OF THE LIEUTENANT GOVERNOR IN COUNCIL)

1. Section 9 of Ontario Regulation 155/18 is revoked and the following substituted:

Right to be informed, prescribed intervals

9. For the purposes of section 9 of the Act, the prescribed intervals are,

(a)  30 days after the child in care’s placement in residential care;

(b)  90 days after the child in care’s placement in residential care; and

(c)  180 days after the child in care’s placement in residential care and every 180 days after that.

2. Subsection 11 (1) of the Regulation is amended by adding the following paragraph:

0.1  Protocols, applicable when a child or young person begins receiving a service, for explaining the following to the child or young person, in language suitable to their understanding and in accordance with their age and maturity, and to the child or young person’s parent or the person who placed the child:

i.  What constitutes a physical restraint under the Act.

ii.  The rules governing the use of physical restraints under the Act, including the circumstances in which the child or young person may be physically restrained and the procedures that must be followed after any such use of physical restraint.

3. (1) Section 12 of the Regulation is amended by adding the following paragraph:

4.1  During the debriefing process referred to in paragraph 2, the service provider shall ensure that,

i.  the reasons for which the physical restraint was used on the child or young person are explained to them,

ii.  the child or young person understands those reasons, and

iii.  the child or young person is asked whether they may require any services or supports because of the use of the physical restraint.

(2) Section 12 of the Regulation is amended by adding the following subsection:

(2) The service provider shall ensure that,

(a)  a written record is prepared setting out any information reported by the child or young person during the second debriefing process, including any information about services and supports the child or young person may require; and

(b)  the record is kept in the child or young person’s file.

4. (1) Subsection 16 (1) of the Regulation is amended by striking out “service provider that is licensed to operate a children’s residence” and substituting “licensee that operates a children’s residence or a licensee to which section 117 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act applies”.

(2) Section 16 of the Regulation is amended by adding the following subsection:

(5) A licensee to which section 117 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act applies shall ensure that all persons who provide direct care to a child in the course of the licensee’s provision of a service to the child complete education in respect of the provisions of the Act and this Regulation concerning the use of physical restraint within 30 days after the day subsection 4 (2) of Ontario Regulation 72/22 comes into force.

5. (1) Subsection 17 (1) of the Regulation is amended by striking out “licensee of a children’s residence” at the end and substituting “licensee in respect of which section 16 applies”.

(2) Paragraph 1 of subsection 17 (3) of the Regulation is revoked and the following substituted:

1.  A training program that includes training in the use of physical restraint that is approved by the Minister, including training in a particular holding technique that may be used.

6. (1) Subsection 21 (1) of the Regulation is amended by striking out the portion before the first definition and substituting the following:

(1) In this section and in sections 21.1 and 21.2,

(2) The definition of “PASD” in subsection 21 (1) of the Regulation is amended by adding “, that is a mechanical restraint” at the end.

(3) The definition of “plan of treatment” and “substitute decision-maker” in subsection 21 (1) of the Regulation is revoked and the following substituted:

“plan of treatment” has the same meaning as in the Health Care Consent Act, 1996. (“plan de traitement”)

(4) Section 21 of the Regulation is amended by adding the following subsection:

(1.1) In this section and in section 21.1, a child or young person’s substitute decision-maker is,

(a)  their substitute decision-maker within the meaning of the Health Care Consent Act, 1996, in relation to a plan of treatment or the use of a mechanical restraint as authorized by a plan of treatment; or

(b)  their nearest relative as defined in subsection 21 (1) of the Act, in relation to a plan for the use of a PASD or the use of a PASD as authorized by a plan for the use of a PASD.

(5) Subsection 21 (2) of the Regulation is revoked and the following substituted:

(2) A service provider may use or permit the use of a mechanical restraint on a child or young person for whom the service provider is providing a service if,

(a)  the use is authorized by,

(i)  a plan of treatment to which the child or young person, or their substitute decision-maker, has consented in accordance with the Health Care Consent Act, 1996, or

(ii)  a plan for the use of a PASD to which the child or young person, or their substitute decision-maker, has consented; and

(b)  the plan of treatment or plan for the use of a PASD,

(i)  includes the content described in subsection (4.1) or (4.2), as the case may be,

(ii)  has been signed and dated by any health practitioner who participated in its development and by the child or young person to whom it relates, or their substitute decision-maker, in such a manner as to indicate their agreement with the content of the plan, and

(iii)  if the plan has been amended following its development,

(A)  it clearly indicates the amendments that were made, and

(B)  it has been signed and dated by any health practitioner who participated in developing the amendments to the plan and by the child or young person to whom it relates, or their substitute decision-maker, in such a manner as to indicate their agreement with the amendments.

(6) Subsection 21 (3) of the Regulation is amended by striking out “clause (2) (b)” and substituting “this section and sections 21.1 and 21.2” and by striking out “that is a mechanical restraint”.

(7) Section 21 of the Regulation is amended by adding the following subsections:

(4.1) A plan of treatment must include the following:

1.  A description of,

i.  any risks the child or young person poses to themselves or others or any other behaviours the child or young person engages in that require the use of mechanical restraints,

ii.  how the use of mechanical restraints supports the health, safety and well-being of the child or young person,

iii.  alternative interventions to the use of a mechanical restraint that have been considered or proven to be ineffective in managing the child or young person’s behaviours and the risks posed by those behaviours,

iv.  clinical or other supports to be provided to the child or young person that are intended to address the behaviours or needs that are being managed through the use of mechanical restraints, and

v.  alternative interventions that are being used to teach the child or young person skills intended to eliminate the behaviours or meet the needs that are being managed through the use of mechanical restraints.

2.  An indication of the length of time during which the mechanical restraint may be used, which shall not exceed 12 hours in any 24-hour period.

3.  An indication of the date on which the plan was developed.

(4.2) A plan for the use of a PASD must include the following:

1.  A description of alternatives to the use of the PASD that have been considered or proven to be ineffective in assisting the child or young person with a routine activity of daily living.

2.  A description of how it was determined that the use of the PASD is reasonable and that the PASD in question is the least restrictive type of PASD that would effectively assist the child or young person with a routine activity of daily living, taking into consideration their physical and mental condition and their personal history.

3.  A description of how the child or young person being restrained by the PASD will be repositioned.  

4.  An indication of the date on which the plan was developed.

(8) Subsection 21 (5) of the Regulation is amended by adding the following paragraphs:

1.1  Only the least intrusive type of mechanical restraint that is necessary in the circumstances shall be used.

. . . . .

2.1  A child or young person must not be secured by a mechanical restraint to a fixed object or another person.

(9) Paragraph 3 of subsection 21 (5) of the Regulation is amended by striking out “monitored on a regular basis” and substituting “monitored continuously”.

(10) Subparagraph 4 ii of subsection 21 (5) of the Regulation is amended by adding “, including when the length of time set out in the plan has expired and no approval under subsection (7.1) has been given” at the end.

(11) Paragraph 4 of subsection 21 (5) of the Regulation is amended by adding the following subparagraph:

iii.  If the child or young person, or their substitute decision-maker, withdraws consent to the use of the mechanical restraint.

(12) Section 21 of the Regulation is amended by adding the following subsections:

(7.1) If the use of a mechanical restraint is authorized by a plan of treatment, a service provider shall ensure that any use of the mechanical restraint does not exceed 12 hours, or such other shorter amount of time set out in the plan of treatment, in any 24-hour period, unless the use of the mechanical restraint for a longer amount of time is approved by,

(a)  a legally qualified medical practitioner;

(b)  a registered nurse or a registered practical nurse;

(c)  a member of the College of Occupational Therapists of Ontario; or

(d)  a member of the College of Physiotherapists of Ontario.

(7.2) A service provider shall ensure that any approval given under subsection (7.1) is documented in the plan of treatment.

(13) Section 21 of the Regulation is amended by adding the following subsections:

(8.1) A service provider shall, for every month, maintain a written record that summarizes every instance of the use of a mechanical restraint that is not a PASD on a child or young person at any premises at which the service provider provides a service during that month, and the record shall include the following in respect of each instance:

1.  The name and age of each child or young person who was restrained.

2.  The dates and time periods during which the mechanical restraint was used in respect of each child or young person.

3.  A description of the circumstances and the risk that existed before the mechanical restraint was used.

(8.2) A service provider shall, on or before the fifth day of every month, provide a copy of the record required under subsection (8.1) in respect of the previous month to,

(a)  in the case of a child who is not a young person, a Director; or

(b)  in the case of a young person, a provincial director.

(14) Subsection 21 (9) of the Regulation is amended by adding the following paragraph:

3.  Protocols for ensuring that the mechanical restraints are only used for the amount of time permitted by this section. 

(15) Subsection 21 (10) of the Regulation is revoked.

7. The Regulation is amended by adding the following sections:

Development and review of plans

21.1 (1) A service provider shall ensure that any plan of treatment or plan for the use of a PASD for a child or young person to whom the service provider is providing a service is evaluated to ensure that it complies with the requirements of section 21 at the following intervals:

1.  30 days after the child or young person’s plan of treatment or plan for the use of a PASD, as the case may be, is developed or, if the plan was developed more than 30 days before the child or young person began receiving services from the service provider, 30 days after the child began receiving those services.

2.  90 days after the child or young person’s plan of treatment or plan for the use of a PASD, as the case may be, is first evaluated under paragraph 1.

3.  180 days after the child or young person’s plan of treatment or plan for the use of a PASD, as the case may be, is first evaluated under paragraph 1 and every 180 days after that.

(2) A service provider shall ensure that a plan of treatment or a plan for the use of a PASD referred to in subsection (1) is also evaluated to ensure that it complies with the requirements of section 21 if any of the following occur:

1.  New information comes to the attention of the service provider respecting the child or young person’s needs.

2.  There is a change to the needs of the child or young person such that an intervention set out in the plan is no longer necessary.

3.  An intervention set out in the plan has been shown to be ineffective.

4.  The service provider receives a request that the plan be reviewed from the child or young person or their substitute decision-maker, if the substitute decision-maker consented to the plan.

(3) As part of an evaluation of a plan of treatment or a plan for the use of a PASD under subsection (1) or (2), the service provider shall ensure that the following individuals are consulted:

1.  Any health care practitioner who developed the plan.

2.  The child or young person to whom the plan relates.

3.  The child or young person’s substitute decision-maker, if the substitute decision-maker consented to the plan.

(4) A service provider shall ensure that any plan of treatment or plan for the use of a PASD for a child or young person to whom the service provider is providing a service and any revised version of such a plan is kept in the file of the child or young person at the location at which the child or young person receives the service.

(5) A service provider shall ensure that,

(a)  a plan of treatment or a plan for the use of a PASD is reviewed by any individual who is employed or otherwise engaged by the service provider to provide a service and who provides direct care to the child or young person to whom the plan relates; and

(b)  the review takes place before the individual provides direct care to the child or young person for the first time and as soon as reasonably possible after any revisions are made to the plan.

(6) The service provider shall ensure that any individual who reviews a plan of treatment or a plan for the use of a PASD signs the plan and indicates the date of the review.

(7) A service provider who is an individual and who provides direct care to a child or young person shall,

(a)  review the child or young person’s plan of treatment or plan for the use of a PASD before providing direct care to the child or young person for the first time and as soon as reasonably possible after any revisions are made to the plan; and

(b)  sign the plan of treatment or plan for the use of a PASD and indicate the date of the review.

Provision of information re use of mechanical restraints

21.2 (1) A service provider shall, in accordance with this section, provide a child or young person to whom it provides a service, or their parent, the information set out in subsection (3) or (4), as the case may be, about the service provider’s use of mechanical restraints.

(2) A service provider shall provide the information at the following times:

1.  Upon the child or young person beginning to receive the service, 30 days after that date, 90 days after that date, 180 days after that date and subsequently at intervals of 180 days.

2.  In between the intervals referred to in paragraph 1, if the child or young person requests a review of the information or the service provider is of the opinion that the child or young person would benefit from such a review.

(3) In the case of a service provider that uses or permits the use of mechanical restraints in accordance with section 21, the service provider shall provide a description of the following to the child or young person or their parent:

1.  The circumstances in which a mechanical restraint may be used on the child or young person under this Regulation.

2.  Any steps that may be taken by the service provider when the mechanical restraint is being used.

3.  A description of the type of mechanical restraint that may be used.

4.  How the use of the mechanical restraint would comply with the child or young person’s plan of treatment or plan for the use of a PASD, as the case may be.

(4) In the case of a service provider that does not use or permit the use of mechanical restraints, the service provider shall inform the child or young person, or their parent, of that fact.

(5) A service provider that uses or permits the use of mechanical restraints in accordance with section 21 shall develop and maintain policies for providing information as required by this section, which must provide that,

(a)  the service provider consider the age and maturity of the child or young person to whom the information is to be provided; and

(b)  the information to be provided relate to the specific type of mechanical restraint that may be used.  

8. (1) Subsection 22 (3) of the Regulation is amended by striking out “and” at the end of clause (c) and by adding the following clauses:

(e)  set out a process for complaints received to be considered and responded to by a person other than a person in respect of whom the complaint is made;

(f)  require the service provider to document the details of the complaint and the steps taken in response to the complaint in the file of the child or young person in respect of whose rights the complaint is made;

(g)  require the service provider to make reasonable efforts to ensure that any person who is informed of the results of the complaints review understands those results; and

(h)  if it is determined during the review that there has been a violation of the rights of a child in care under Part II of the Act, require the service provider to determine whether there are any measures that could be implemented to prevent the same violation from recurring and implement any such measures.

(2) Subclause 22 (3) (d) (ii) of the Regulation is amended by striking out “30” wherever it appears and substituting in each case “15”.

(3) Section 22 of the Regulation is amended by adding the following subsections:

(4) The requirements in clauses (3) (b), (c) and (d) do not apply in respect of the person who made the complaint if the complaint was made anonymously.

(5) A service provider referred to in subsection (1) shall ensure that,

(a)  a version of the written procedure is prepared that sets out the aspects of the written procedure relevant to making a particular type of complaint referred to in subsection (2) in language suitable to the understanding of the individuals who are entitled to make that type of complaint; and

(b)  that version is made available to the public.

(6) After preparing a document under clause (3) (f) in relation to a complaint about the violation of a child’s rights, a service provider referred to in subsection (1) shall provide the document to,

(a)  if the complaint relates to an alleged violation of the child’s rights by a service provider providing residential care to the child, the child’s placing agency or person who placed the child, unless the service provider that prepared the document is the placing agency; or

(b)  if the complaint relates to an alleged violation of the child’s rights by a placing agency, the service provider providing residential care to the child, unless the service provider that prepared the document is the service provider providing residential care to the child.  

9. (1) Subclause 23 (2) (f) (ii) of the Regulation is amended by striking out “30” wherever it appears and substituting in each case “15”.

(2) Subsection 23 (2) of the Regulation is amended by striking out “and” at the end of clause (i), by adding “and” at the end of clause (j) and by adding the following clause:

(k)  if it is determined during the review that there has been a violation of the rights of a child or young person under sections 3 to 7 of the Act, require the service provider to determine whether there are any measures that could be implemented to prevent the same violation from recurring and implement any such measures.

(3) Section 23 of the Regulation is amended by adding the following subsection:

(4) A service provider referred to in subsection (1) shall ensure that,

(a)  a version of the written procedure is prepared that sets out the aspects of the written procedure relevant to making a particular type of complaint referred to in subsection (2) in language suitable to the understanding of children and young persons; and

(b)  that version is made available to the public.

10. The Regulation is amended by adding the following sections:

Debriefing

23.1 After a complaint has been reviewed according to the complaints procedure referred to in section 22 or 23, the service provider shall ensure that a debriefing is conducted in accordance with the following rules:

1.  A debriefing process must be conducted with the persons to whom the complaint relates, in the absence of any children or young persons.

2.  A second debriefing process must be conducted with the child or young person who made, or is the subject of, the complaint, in the absence of the persons to whom the complaint relates. If requested by the child or young person, the debriefing shall also include an adult identified by the child or young person as a support person.

3.  A third debriefing process must be offered to be conducted with any children or young persons who witnessed any conduct that gave rise to the complaint and must be conducted if any such children or young persons wish to participate in the debriefing process.

4.  The debriefing processes referred to in paragraphs 2 and 3 must,

i.  be structured to accommodate any child or young person’s psychological, communication and emotional needs and cognitive capacity, and

ii.  be focused on understanding the experiences of the child or young person that led to the complaint being made as well as what the service provider can do to better meet the needs of the child or young person.

5.  Subject to paragraph 6, the debriefing processes referred to in paragraphs 1 to 3 must be conducted within seven days after the complaint has been reviewed.

6.  If the circumstances do not permit a debriefing process to take place within seven days after the complaint has been reviewed, the debriefing process must be conducted as soon as possible after the seven-day period referred to in paragraph 5, and a record must be kept of the circumstances which prevented the debriefing process from being conducted within the seven-day period.

7.  The service provider must record the following:

i.  The date and time of each debriefing, the names and, if applicable, titles of the persons involved in each debriefing and the duration of each debriefing.

ii.  The name of each child or young person for whom a debriefing was offered in accordance with paragraph 3 and who indicated that they did not wish to participate in the debriefing process.

iii.  A description of the efforts made to conduct the debriefing processes required by this section that includes the names of the persons who made those efforts.

Reviews respecting complaints and complaints procedures

23.2 (1) A service provider shall ensure that, at least once every 12 months, a written evaluation is conducted of the service provider’s written complaints procedure under subsection 18 (1) of the Act or section 23 of this Regulation, as the case may be, in order to assess, 

(a)  the effectiveness of the written complaints procedure; and

(b)  the need for any changes to the procedures to improve their effectiveness.

(2) The service provider shall, on or before the fifth day of every month,

(a)  prepare, for the previous month, a written analysis of every complaint received pursuant to the complaints procedure and the results of the review to determine whether any changes are required to the manner in which a service provider respects the rights of children and young persons when providing a service; and

(b)  provide the written analysis to,

(i)  in the case of a child who is not a young person, a Director, or

(ii)  in the case of a young person, a provincial director.

11. The Regulation is amended by adding the following section:

Directives for Lead Agencies and Service Providers

Minister’s directives

23.3 The following matters are prescribed for the purposes of subsection 32 (2) of the Act:

1.  Policies and procedures to protect the health of children and young persons receiving services.

12. The Regulation is amended by adding the following section after the heading “Residential Licensing”:

Exclusions from definition of “children’s residence”

112.1 The following places are prescribed for the purposes of paragraph 12 of the definition of “children’s residence” in section 243 of the Act:

1.  Any places where boarding or lodging is provided by a school or private school as defined in the Education Act to children enrolled in the school.

13. Section 115 of the Regulation is amended by adding the following paragraph:

5.  Policies and procedures to protect the health of children and young persons receiving residential care under the authority of a licence issued under Part IX of the Act.

Commencement

14. (1) Except as otherwise provided in this section, this Regulation comes into force on the day it is filed.

(2)  Sections 1 to 10 come into force on the later of July 1, 2023 and the day this Regulation is filed.

 

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