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Mental Health - Restraint. Stolove v. Waypoint Centre for Mental Health Care
In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".
The court considers the concept of 'restraint', here in the context of the Mental Health Act:(2) The use of restraint and the “least restraint principle”
[14] Restraint refers to the application of physical, mechanical, or chemical controls on a patient in order to prevent serious bodily harm to the person or to others. Restraint includes seclusion, namely, the placement of a patient in a locked room to prevent or minimize bodily harm.
[15] The Mental Health Act provides that psychiatric hospitals may only restrain a patient in accordance with the least restraint principle, defined in s. 1(1) as placing a person under control “when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient” (the “Least Restraint Principle”). Similarly, s. 7 of the HCCA recognizes a common law duty of a caregiver to restrain or confine a person “when immediate action is necessary to prevent serious bodily harm to the person or to others.”
[16] According to the evidence, the Least Restraint Principle requires that: (a) seclusion or restraint be used only when a patient represents an imminent risk of serious bodily harm to themselves or others; (b) alternatives to the use of seclusion or restraint are explored and found to be ineffective to prevent the imminent risk of bodily harm; and (c) seclusion or restraint is used for the shortest possible duration and is discontinued once there is no longer an imminent risk of serious bodily harm.
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[30].... In fact, at common law persons involved in the care and treatment of a patient are under a legal duty to exercise reasonable care to ensure the patient does not harm themselves or others, and could be liable for failure to satisfy that duty: citing Conway v. Fleming, [1996] O.J. No. 1242 (Gen. Div.), aff’d (1999) 1999 CanLII 19907 (ON SC), 43 O.R. (3d) 92 (Div. Ct.), leave to appeal refused, [1999] S.C.C.A. No. 473. In other words, restraining and secluding a patient may be culpable in individual instances but is not per se unlawful.
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[47] As described above, the motion judge reviewed the Hospital’s policies and procedures on the use of restraint and seclusion and found that they appropriately incorporated and reflected the Least Restraint Principle. There is ample evidence in the record supporting the motion judge’s analysis and findings in this regard. For example, the Hospital describes its policy on the use of restraint as follows:Waypoint Centre for Mental Health Care supports a recovery oriented approach to patient care and treatment and a least restraint philosophy. In accordance with the Mental Health Act (MHA) and Waypoint’s common law duty to protect patients, visitors and Staff, the use of restraint or seclusion may be used, without the consent of the patient or patient’s substitute decision-maker (SDM), if immediately necessary to prevent serious bodily harm to the patient or to another person. This may also be referred to as “common law” or “emergency” restraint. [48] The Hospital’s policies also acknowledge that the use of restraint and seclusion frequently results in adverse physical, emotional and psychological outcomes for all individuals involved, including patients and staff. For this reason, the benefits of using restraints must outweigh the potential risks in each individual case. The Hospital states that it adopts a “trauma informed care approach” in which alternate plans are identified in advance to minimize the need to use emergency restraints, which must be used “in alignment with evidence-based care.” The commitment to the Least Restraint Principle is reflected in the following mandatory requirements:When restraint or seclusion are used, they must only be used as a last resort, in situations where a patient presents an immediate risk of serious bodily harm to self or others. Restraint may only be used after all alternatives, less restrictive measures and de-escalation strategies have been considered or implemented and assessed as ineffective.
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Restraint and seclusion shall be used for the shortest possible duration based on regular clinical assessments as necessary to meet the safely and patient’s needs. [49] There are extensive procedures and protocols that must be followed whenever restraint or seclusion is utilized, with a view to ensuring that this commitment to the Least Restraint Principle is implemented in practice. This includes requirements for extensive documentation setting out the basis for the use of restraint; internal and external review of emergency restraint events; and mandatory training and education for staff on the use of restraint and seclusion.
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[51] ... The Hospital policies governing the development of individual treatment plans, including crisis prevention plans, include collaboration with the patient or substitute decision-maker, and such plans must demonstrate “an approach that is underpinned by the principles of respect and recovery” and be based on “an individualized assessment of the patient’s needs.”[2] Moreover, individual treatment plans must comply with the limitations on the use of restraint as set out in the MHA and the Hospital’s overall policy on the use of restraints, both of which incorporate the Least Restraint Principle.[3] ...
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