The Human Rights Framework How to think about responding to a person’s needs when they pose a significant risk of harm to their self or others and their

The Human Rights Framework

How to think about responding to a person’s needs when they pose a significant risk of harm to their self or others and their human or civil

rights may be challenged.

October 4, 2013DDS Office for Human Rights

Audience

This module is intended for any person or group of persons who are, or could be in

the future, working with a problem presented in the actions of a person that

presents a significant risk of harm. On the direct care level, the presentation would best be supplemented by a site based discussion about people they know.

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Fundamental Rights

Every person has the constitutional right to Liberty, Freedom of Association, Freedom of

Speech, Right to Privacy, Equal Access to Goods and Services, the Right to Autonomy,

and the right to Freedom of Movement.

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Safeguards

The federal government grants to the states the authority to establish standards for

safeguarding many of these basic rights when persons are subject to their care.

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Considerations When Responding to Serious Challenges:

Know the Person • All planning starts with a deep

understanding of the person.

• What do we know about the circumstances that raise the risks of harm and how does the person relate to those circumstances?

• Why does the person respond to these circumstances the way they do?

Know the Person

• What is the person trying to communicate?• What do we know about the things that

upset them?• What special challenges exist in their life?• Are there special circumstances occuring

in their life now that could cause this disruption?

• What activities, events or tangibles make them really happy?

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Considerations: Know the Person

Planning starts with knowing the person and putting the person and their interests in the

center and working out from there.

Person

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Considerations: a Compelling Reason Must Exist

• There needs to be a compelling reason to justify limiting someone’s rights if this may be part of the solution to the risk.

• A compelling reason could include the potential for harm as documented by specific events, not just a general concern, or fear.

• It could include that the person is abusing their communication rights by calling 911 when there is no emergency, disrupting 911 services and jeopardizing support of the police.

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Considerations: A Compelling Reason (continued)

• A compelling reason could include limits to visits if the visitor has abused the person in the past or the person just doesn’t want to see them.

• A compelling reason could include limiting a person’s privacy if shown that the person has tried to hurt their self when alone in their room.

• A compelling reason could include limits to private visits by a person that they want to be sexually intimate with if there is evidence that one of the two is not truly informed to consent to sexual activity, or not otherwise consenting.

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• When a person uses one of their possessions in unsafe ways, such as a cigarette lighter.

• When left alone the person persists to try to jump out the window or run out the door or to run down the middle of the road.

• When on pay day a person walks down the street each time giving away their money, then complains they have no money to spend.

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Good Compelling Reason

Person

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Considerations: Use Less Restrictive Measures

• Do you understand why the compelling behavior leading to the need for the restriction exists?

• What has already been tried?• Are there environmental, preventative or

re-direction strategies that could work to prevent the potential harm?

• Is there a replacement skill you could teach the person to accomplish the goal?

Less Restrictive Measures Tried

• So in the case of a family member who has hurt a person in the past, the person effected could ask their service coordinator to place a visitation restriction in their ISP.

• Where two people want to be intimate, the program could provide the training needed to be fully informed of their choices.

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Less Restrictive Measures Tried(Continued)

• In the case of the person who runs into the road, and you know they just need exercise every so often, you schedule an activity in to fill this need often enough.

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Considerations: Use Less Restrictive Measures (continued)


Less Restrictive Person

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Consideration: Balancing Restriction with Teaching or

Treatment

Where a restrictive measure may be part of a solution, any provision to limit or restrict a fundamental right raises an obligation to balance rights with treatment by providing whatever teaching strategy or treatment

available to effectively reduce or eliminate the need for the limitation or restriction.

Balancing Restriction with Teaching or Treatment

(Continued)• In the case of the historically abusive family

member, the problem wasn’t with the person we support, so no treatment was needed. If, however, contact can’t be totally eliminated, the program could work to de-sensitize the person to the effects of such contact.

• In the case of the intimate couple, training on the risks of sexuality seems to be all that was needed. If, however, one partner didn’t know how to say no, this could be part of their goal.

Balancing Restriction with Teaching or Treatment

(Continued)

• For the person who runs into the road, there may need to be more thinking about how to introduce the alternative behavior. This may require a behavior support plan to help ensure the person’s safety is ensured while learning the alternative strategy. It also requires staff to understand how to tell when it is time to step in and offer the alternative.

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Consideration: Balancing Restriction with Teaching or

Treatment


Less Restrictive Person Treatment

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Consideration: Due Process

• The principles of due process are found in DDS regulations

• The right to communication, phone and mailing rights, are basic civil rights. These may not be restricted outside of the person’s Individual Service Plan.

• The right to be visited or visit others can only be limited by a decision documented in the person’s Individual Service Plan

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Consideration: Due Process (continued)

• Liberty may be restricted in an emergency under the rules for emergency restraint.

• Liberty may also be restricted according to terms of an intensive behavior support program, or Level II behavior modification plan, consented to by the person and/or guardian, approved by the Peer Review Committee and the Approved by the Human Rights Committee.

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• Restriction on possessions and/or funds may be restricted on the basis of an ISP provision, a behavior modification plan or the order of a court.

• Other Limitations of Movement; transportation restraint, Supports for Proper Body Position and Safe Participation in Program must be approved in the person’s Individual Service Plan and reviewed by the Provider agency’s Human Rights Committee.


• As discussed earlier, for the person with a family member with an abusive history, the ISP team needs to meet and modify the individual’s ISP to establish a restriction on the visitation access by the abusive family member.

• For the couple interested intimacy, there may need to be a short term ISP modification to their privacy in visitation rights until the teaching can be completed to the satisfaction of the team.


• For the person with a behavior support plan it depends on the person’s cooperation with the procedure. If the intervention is designed right, there should be no need for any form of escort to the place of energy discharge and the plan needs to be approved as a Level I plan in the ISP. If they ever need to use force to re-direct the person it may require a Level II plan and review by Peer Review and Human Rights Committees.

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Human Rights Framework

Good planning for addressing serious risks doesn’t have to lead to the need to institute such a restriction!

It starts, by putting the person in the middle and working to understand who they are and what they might need

Bind the process by surrounding the person with a compelling reason to act, think about the least restrictive means, balance restrictions with treatment and provide adequate process

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Person

Application of Due Process Principles

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How to Approach Problems

• An administrator comes to you to say that Ralph ran out the door to the edge of the street at the day habilitation center today. “I think we need to strap him into his chair as a Supportive Device to Achieve Proper Body Position and Safely Participate in Programming, to keep him from doing this.” (In real life they may say as a support or supportive device.)

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How to Approach Problems (Continued)

• First thing you need is more information:How was this actually dangerous (didn’the stop at the edge of the road? Are they just afraid he will go further?)

Why do you think he did this? Did youask him? Can he answer this?

Do you know where he was going or why?

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• Who is Ralph, what motivates him?

• Was there anything or anyone near where he stopped?

• Did anyone see him going and try to convince him to stop?

• How did staff get him back in the building?

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• Once the administrator goes out and gets the answers, your first inquiry is whether you can resolve the problem without restricting or limiting his movement.

• The observation that showed him stopping at the edge of the road may lead you to think the answer may be yes.

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• The administrator said he ran out of the building yelling “dog.” He may have been looking out the window and saw a neighbor’s dog, he lived near by, and went out to say hi. The dog was on the sidewalk.

• Maybe if the dog was in the road, he would have gone there, reasoned the administrator.

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• Assuming this still could represent a compelling reason, the next inquiry is whether there are less restrictive means.

• Has this person ever done this before?

• The answer was they just moved him to a window seat in the center and has never done this before.

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• This says that he generally doesn’t get distracted and maybe if you just move him back to a seat away from the window the problem wouldn’t recur.

• The administrator tried this for two weeks and the person never got out of his seat to go out the door during the work day.


• In Human Rights the most frequent call we get is to properly classify an action someone thinks they need to take.

• The most common answer goes back to the person and often comes out with a very different solution.

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Another case:A Human Rights Coordinator was reviewing HCSIS reports and read the following in an unplanned transportation restraint report.

• Susie was working diligently at her work station when the bell went off telling everyone it was time to go. She acted like she never heard the bell and kept on working.

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• Staff came over and told her it was time to go home. He prompted her to stop and put her materials away.

• Susie kept working, she said “No, I don’t want to go, I want to finish this!” Staff informed her that wasn’t an option and directed her to get up and put her things away. Staff determined she was non-compliant and got help to physically lift her out of her chair, get on her coat and escort her onto the van.

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• The Human Rights Coordinator called the program director to ask about this. Her first concern was whether there was a compelling reason for using some physical force over active resistance.

• The program director said the van had to go and she couldn’t stay in the building by herself.

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• The program director also noted that the regulation allows staff to move a person between the site and the van.

• The coordinator determined there was no compelling reason as the regulation clearly says they can use force only as an issue of safety and not for the convenience of staff. Someone could have acknowledged her feelings and negotiated with her about her need to finish and see if she would willingly go knowing she could finish the next day.

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• The coordinator also felt someone could have volunteered to stay with her for an agreed upon extra time period and transport her to her home when done. The agency does have a protocol for this.

• The coordinator talked with the Executive Director of the agency and they were asked to draft a memo to be sent out by the director, clarifying the rules on transportation restraint.

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Another Case:

• A human rights committee was given a health related protection to review. It was for the use of a posey board for an individual receiving dental care. It said that the dentist had ordered this because he had success with it with other persons with intellectual disabilities. The person would otherwise wiggle wildly in the chair while receiving care, which would cause risks of harm.

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• The committee agreed that the person needed to be stable to receive dental care so there is a compelling need to address the wiggling in the chair. One person noted that the practice with a prior dentist involved physical contact with a favorite staff person, along with a small dose of a pre-medication. The HRC also worried about the person’s response to the board.

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• The HRC asked the Human Rights Coordinator to contact the person’s Service Coordinator to see if there was any experience with the board and the person’s response to it. They asked to inquire as to whether they had tried the prior approach with the new dentist.

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• The Service Coordinator had said that this was the preference of the dentist, but the individual had nightmares on the night after the board was used. They said that the supervisor had told her to go along with the dentist. The HRC wrote to the Area Director noting the provision was not the least restrictive approach and asking they approach the dentist about trying the person’s preferred successful strategy.

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• There had been some difficulty finding dentists to work with this population, but the Area Director agreed this was worth talking to the dentist about. The old provision was put back in place, the person was happier and the dentist was satisfied by the response.

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Review• First, make sure you have a full picture, people often

present information as they experience it, rather than stopping to get the full picture.

• Ascertain if there really is a compelling issue warranting attention.

• Apply your knowledge of the person to the facts, getting more if you need to, and see if there are less restrictive approaches that could work.

• If treatment isn’t the solution, make sure there are treatment strategies available to help the person move away from the need for restrictions.

• Finally, make sure whatever solution gets put in place, it receives the due process required for that procedure.

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Questions?

For more assistance with applying these principles, contact your regional Human Rights Specialist, the

list can be found under the Human Rights Link under mass.gov/dds in the top section of the left column to

the DDS home page.

You also may contact:

Tom Anzer, Human Rights Director for DDS

at 617-624-7738

For more Information

Documents

The Human Rights Framework How to think about responding to a person’s needs when they pose a significant risk of harm to their self or others and their