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Balancing Rights & Choice With

Risks & Responsibilities

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Eva Kutas

TODAY’S FACILITATOR

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Required Copyright Notice

This presentation includes the creative works of others which is being used by permission, license

or under a claim of fair use (17 U.S.C. 107).

This presentation was prepared under the Fair Use Guidelines for multi-media presentations, and further use of distribution of it is

not permitted.

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DISCLAIMER

This presentation is NOT LEGAL ADVICE, and you should consult your agency’s attorney for legal advice (DOJ attorney, private attorney, city attorney, or county counsel).

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Other Titles Considered

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• Rights versus Risk: Where’s the Balance?

• Cover your Assets – Tools for Balancing Rights and Risks

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• Explain your Decisions to the Newspaper, Board and Parents: A Simple Approach

• Extreme Sports for the DD Provider: Balancing Choice and Risk

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Learn about rights, duties and obligations.

Become familiar with tool to help make decisions.

Practice using the tool through examples.

Agenda:

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Where do rights come from?

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• U.S. / Oregon constitutions

• Laws • statutes • administrative rules

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What rights are common to all

people?

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What rights are common to all people?

Vote Freedom of religion Freedom of speech Own property Bear arms (guns) Have children

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What are the rights of people with

developmental disabilities receiving

services?

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  … plus (ORS 430.210):

The same list

individualized written service plan not participate in experimentation without informed consent freedom from abuse and neglect

(and)

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assert grievances no labor without compensation visit with family members, friends, advocates, legal professionals

(ORS 430.210):

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Duties and Obligations

• Provide a reasonable explanation of service considerations

• Provide services in way that is least restrictive and providing for greatest degree of independence

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• A humane service environment with protection from harm and reasonable privacy

• Consider grievances in a fair, timely and impartial manner

Duties and Obligations of Guardians,

Providers, County and State

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• Assure health and safety-from other sources like county contract and conditions with Medicaid funds

• Personal and professional ethics to protect interests of individual

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Balance is key in decision making

Risk and fear = Rights out the door

Rights only = Common sense out the door

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Balancing Rights and Risks (A Decision-making Tool)

• Use by provider, ISP team

• Helps to document and explain decision to others (family, staff, managers, board, county)

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High Risk

No or Low Risk

Low Scrutiny

High Scrutiny

Moderate Scrutiny

Choice unclear/Inconsistent with known values and interests

Choice clear/Consistent with known valuesand interests

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The Tool’s 1st leg:

Choice Choice unclear/Inconsistent with known values and interests

Choice clear/Consistent with known valuesand interests

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• Healthy eating or overeating• Living in environment with dirty dishes or exposed wiring or backed up toilet•Trading sex for “Stuff”• Having people over to visit or staying for a week•Drinking or using drugs

Examples of different types of choices:

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The Tool’s 2nd leg:

Values

Is choice consistent with values?

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Personal: love, justice, truth, health, religion, family, friends, kindnessAgency: service to others, integration, cost-effective service delivery

Community: safety, cleanliness

Examples of different types of values:

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The Tool’s 3rd leg:

Risks

High Risk

No or Low Risk

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What are risks of choices?

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all risk is not the same

 • Probability of harm• Severity and duration of harm

Measuring Risk

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not the movie but a framework for assessing decision-making capacity

The Matrix

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Principle #1: If the client’s choice is clear, consistent

with their values and has little or no risk of harm…

The Matrix

From everyday examples

Provider responsibility for looking at decision is minimal

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Principle #2: If the client’s choice is less clear, inconsistent with their values little or no risk of harm…

The Matrix

Provider responsibility is still minimal and informal process ok, but look to see if it is a voluntary decision.

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Principle #3: If the risk is greater…

The Matrix

Provider should look at decision and make sure it is voluntary and informed (person understands it). Formal conversation, e.g. team meeting.

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Principle #4: If the risk is serious and inconsistent with person’s values and best interest…

The Matrix

careful examination necessary.

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Case study:

Let’s assess an example together using the Matrix

Activity

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What type of choice is being made here?

Consider:

Is it clear and consistent with their known values and interests? Is it unclear and inconsistent with their known values and interests?

Choice

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1. Evaluate and identify the risk.

Our Task:

2. If the risk is imminent and potential for harm is serious, what interventions do you recommend?3. If the risk is serious but not imminent, what interventions do you recommend?4. Does the situation call for an informal or formal process?

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Challenges / Impediments and

Other Considerations

• Skittish board of directors

• Fear of bad publicity or liability

• Nervous case manager

• Fear of it being called “abuse” and being reported

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Thank You for Participating!