Cruel and unusual? The implications of Section 12 of the Canadian Charter of Rights and Freedoms on restraint use in care facilities.

摘要

In British Columbia, one of four separate Acts that comprise the new adult guardianship legislation places strict controls on restraint use in care facilities. The Health Care (Consent) and Care Facility (Admission) Act;Section 12 of the Canadian Charter of Rights and Freedoms has been mentioned in legal literature discussing potential remedies with respect to patient abuse. However, no in-depth analysis has been undertaken on the relationship of the concept of "cruel and unusual treatment" and the use of restraints on residents in care facilities. Legal analysis of the meaning and application of the clause as it appears in the Charter and the preceding Bill of Rights supports an argument that the legislation regulating the practice of restraint use in extended care facilities might violate the legal prohibition against such treatment. In light of the recent development of viable alternatives to restraint, continued acceptance of the use of restraint in the long term care context might constitute "cruelty" due to the known adverse effects of the practice, and could be considered an "unusual" treatment of care facility residents where restraint alternatives can serve to adequately replace it. (Abstract shortened by UMI.) ftn