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Directing Residential Care Concerns to Health Authorities

2016-05-13T15:53:44Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health. ([[{{PAGENAME}}#References|14]])

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether "unreviewable Licensing decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12, over 4500 in 2012/13 and over 7100 in 2014/15. Less than 2% of the complaints (90 cases in 2012/13 and 100 in 2014/15) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the registry (and “deregistering”) system exists, a review of the provincial system pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) that is brought to its attention and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016) For other more recent data, see Patient Quality Care Review Board Annual Report, 2014-15. Online: https://www.patientcarequalityreviewboard.ca/pdf/PatientCare_QRB_2014-15_Web.pdf (Last accessed May 10, 2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:51:19Z

Charmaine Spencer: /* What can a Patient Care Quality Review Board review? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health. ([[{{PAGENAME}}#References|14]])

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether "unreviewable Licensing decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12, over 4500 in 2012/13 and over 7100 in 2014/15. Less than 2% of the complaints (90 cases in 2012/13 and 100 in 2014/15) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the registry (and “deregistering”) system exists, a review of the provincial system pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) that is brought to its attention and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:49:37Z

Charmaine Spencer: /* Volume */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether unreviewable Licensing "decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12, over 4500 in 2012/13 and over 7100 in 2014/15. Less than 2% of the complaints (90 cases in 2012/13 and 100 in 2014/15) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the registry (and “deregistering”) system exists, a review of the provincial system pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) that is brought to its attention and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:48:54Z

Charmaine Spencer: /* Volume */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether unreviewable Licensing "decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12, over 4500 in 2012/13 and over 7100 in 2014/15. Less than 2% of the complaints (90 cases in 2012/13 ans 100 in 2014/15) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the registry (and “deregistering”) system exists, a review of the provincial system pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) that is brought to its attention and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:37:24Z

Charmaine Spencer:

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether unreviewable Licensing "decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the registry (and “deregistering”) system exists, a review of the provincial system pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) that is brought to its attention and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:32:50Z

Charmaine Spencer: /* What can a Patient Care Quality Review Board review? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board ''will not review''. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

It is unclear whether unreviewable Licensing "decisions" might include Licensing not responding to (or deciding to not investigate) a complaint.

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:24:23Z

Charmaine Spencer: /* Community Care Licensing Offices */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

It is often unclear whether complaints should brought to the PCQO or to Licensing. Licensing tends tofocus complaints that can be tied to specific Residential Care Regulations, and inspections/paper trails. Licensing also has considerable regional variation in how or whether they respond to complaints. Some health authorities, as as Vancouver Coastal will note in their inspection reports whether there are any Bill of Rights complaints/ infractions, but other health authorities do not.

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T15:22:23Z

Charmaine Spencer: /* Use */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted that the PCQ program is largely geared to addressing concerns in acute care and there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

The legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T14:59:46Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

Also the legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1. For 2014/15 data see Office of the Seniors Advocate,Monitoring Seniors Services, 2015. pages 19-20. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf ( Last accessed May 10, 2016).
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FHA confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to Health Authorities

2016-05-13T14:54:35Z

Charmaine Spencer: /* Use */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the cost of care is subsidized or not.

==Patient Care Quality Office==

Every health region in B.C. has a Patient Care Quality Office. If a person feels that a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.

===Role, mandate===

The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received ([[{{PAGENAME}}#References|1]])(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.([[{{PAGENAME}}#References|2]]) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).

===Scope===

A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?

There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.

===Process===

Complaints to the PCQO can be made verbally, in person, by phone or in writing.

The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.

The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. ([[{{PAGENAME}}#References|3]]) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).

The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.

====Available remedies from PCQO?====

The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. ([[{{PAGENAME}}#References|4]])

===Review of Complaint or Concern===

If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.

===Use===

Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices (PCQO) throughout the province in 2012 related to residential care. However, the Seniors Advocate noted that the PCQO received 621 complaints related to residential care in 2014/15 (nearly double the 2012 figures).([[{{PAGENAME}}#References|5]]) A 2012 review of the PCQO and PCRB systems noted there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. ([[{{PAGENAME}}#References|6]])

Also the legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. ([[{{PAGENAME}}#References|7]]) The PCQ program predominantly serves English-speaking Caucasians. ([[{{PAGENAME}}#References|8]]) It has also been pointed out that the intended focus of the PCQ program is unclear– is it expected to be providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? ([[{{PAGENAME}}#References|9]])

==Patient Care Quality Review Board==

If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.

These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed.
The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. ([[{{PAGENAME}}#References|10]]) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.

'''Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.'''

{| class="wikitable"
|- valign=top
| width="100%" | "health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes

*(a) a course of health care, and
*(b) other prescribed services relating to individuals' health or well-being

|}

===The Process===

The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.

===Who Can Complain===
[[File:Complaints.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:

*(a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and ([[{{PAGENAME}}#References|11]])
*(b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. ([[{{PAGENAME}}#References|12]])

'''Note: Third Party Consent Form'''

If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.

===Scope===

'''Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?'''

Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. ([[{{PAGENAME}}#References|13]])

===What can a Patient Care Quality Review Board review?===

([[{{PAGENAME}}#References|14]]) The boards can review:

* complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
* complaints about services that were expected, but were not delivered by the health authority,
* complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
* matters directed by the Minister of Health.

There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:

* involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
* a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
* a decision of the Community Care and Assisted Living Act Appeal Board. ([[{{PAGENAME}}#References|15]])

The Review Board also cannot hear certain matters related to:

* health professionals providing services in private practice,
* health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
* health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.

===Residential Care Issues===

Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. ([[{{PAGENAME}}#References|16]]) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.

===Recourse===

The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. ([[{{PAGENAME}}#References|17]])The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.

A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. ([[{{PAGENAME}}#References|18]]) That approach does not address the underlying issue of the quality of care in the facility.

The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.

===Volume===

The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.

==Community Care Licensing Offices==
[[File:inspection.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.

Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. ([[{{PAGENAME}}#References|19]])In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. ([[{{PAGENAME}}#References|20]])

====Advocacy Points====

Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by

* Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
* Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.

The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.([[{{PAGENAME}}#References|21]])

The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. ([[{{PAGENAME}}#References|22]]) Fraser Health now states it is conducting these regular inspections for private hospitals. ([[{{PAGENAME}}#References|23]])

====Complaints against Private Hospitals====

The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. ([[{{PAGENAME}}#References|24]])

===How Licensing Complaints Are Investigated===

A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.

When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:

# determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
# determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
# prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.

This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps.
Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. ([[{{PAGENAME}}#References|25]])

If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.

:“Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” ([[{{PAGENAME}}#References|26]])

Some examples of licensing conditions include

* requiring a facility to develop a plan to ensure appropriate care,
* requiring a facility to improve its documentation,
* temporarily suspending a facility’s ability to admit new residents,
* requiring a facility to increase the hours of its on-site manager, ([[{{PAGENAME}}#References|27]]) and
* requiring the facility to have a new manager. ([[{{PAGENAME}}#References|28]])

Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.

===The Approach: Education and Progressive Compliance===

According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. ([[{{PAGENAME}}#References|29]])New facilities are automatically considered high risk because they do not have a track record.

By law, the most recent routine inspection record is required to be accessible to residents and families. ([[{{PAGENAME}}#References|30]]) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.

==Local Ethics Committees==

Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. ([[{{PAGENAME}}#References|31]])If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.

The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. ([[{{PAGENAME}}#References|32]]) Each committee sets its own process.

It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.([[{{PAGENAME}}#References|33]])

==The BC Care Aide and Community Health Worker Registry==
[[File:community health worker.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.([[{{PAGENAME}}#References|34]]) There is also an ongoing responsibility to monitor employees’ performance.([[{{PAGENAME}}#References|35]])

In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.

The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. ([[{{PAGENAME}}#References|36]]) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.

Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. ([[{{PAGENAME}}#References|37]])

The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.

===The Process===

Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health.
Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. ([[{{PAGENAME}}#References|38]]) The circumstances are investigated by the Registrar’s office.

The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.

===The Challenges===

Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.

Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. ([[{{PAGENAME}}#References|39]])

Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).

==References==
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/Documents/PCQO/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed January 9, 2016). ["PCQO Resource Guide"]
#See: PCQO Resource Guide. Also note: Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] (Last accesssed January 9, 2016). Notes that staff find the PCQ timelines challenging and unreasonable.
#Murtaugh.
#See Murtaugh, pg. 17, Figure 1.
#Murtaugh, pg. 24.
#Murtaugh.
#Murtaugh, p. 21.
#Murtaugh, p. 41
#"Care quality complaint" means a complaint
##(a) respecting one or more of the following:
###(i) the delivery of, or the failure to deliver, health care;
###(ii) the quality of health care delivered;
###(iii) the delivery of, or the failure to deliver, a service relating to health care;
###(iv) the quality of any service relating to health care, and
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
#HCCCFAA, s.1
#HCCCFAA, s.1
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed January 9,2016).
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed January 9,2016)
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed January 9,2016)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed January 9,2016)
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed January 9,2016)
#CCALA, s. 15.
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
#Best of Care, Part 2, pg. 314.
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
##March 2013 - FH confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
#Ombuds, Best of Care Part 2, pg. 311
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. [“Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
# See for example, WM v Bateman 2004 BCCCALAB 1. Online http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed January 9,2016)
#Community care licensing guide, pg. 4.
#RCR, Schedule D, Bill of Rights, s 4 (d).
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed January 9,2016)
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014). Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics, 9(1),28-35.
#RCR, s. 38.
#RCR, s. 40 (1).
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed January 9,2016).
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed January 9,2016)
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed January 9,2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:47:18Z

Charmaine Spencer: /* Addressing Systemic Concerns: BC Seniors Advocate */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]]) access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Seniors Advocate released the first provincial report monitoring key services to seniors in health care, housing, transportation, income support and abuse. ([[{{PAGENAME}}#References|47]])

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|48]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

Like the BC Ombudsperson, the Seniors Advocate is limited by law to making recommendations to government, which public bodies may or may not act on.

==References==
#See Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:45:05Z

Charmaine Spencer: /* Help with the Process */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]]) access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Seniors Advocate released the first provincial report monitoring key services to seniors in health care, housing, transportation, income support and abuse. ([[{{PAGENAME}}#References|47]])

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|48]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:42:51Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Seniors Advocate released the first provincial report monitoring key services to seniors in health care, housing, transportation, income support and abuse. ([[{{PAGENAME}}#References|47]])

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|48]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:39:38Z

Charmaine Spencer: /* Addressing Systemic Concerns: BC Seniors Advocate */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Seniors Advocate released the first provincial report monitoring key services to seniors in health care, housing, transportation, income support and abuse. ([[{{PAGENAME}}#References|47]])

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|48]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:37:40Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Office of the Seniors Advocate released the first report monitoring key services to seniors in health care, housing, transportation, income support and abuse.

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|47]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:36:56Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Office of the Seniors Advocate released the first report monitoring key services to seniors in health care, housing, transportation, income support and abuse.

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|47]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016)

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:33:46Z

Charmaine Spencer: update Seniors Advocate

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Office of the Seniors Advocate released the first report monitoring key services to seniors in health care, housing, transportation, income support and abuse.

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|47]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Directing Residential Care Concerns to External Bodies

2016-05-13T14:26:33Z

Charmaine Spencer: update Seniors Advocate

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}}

==Directing Concerns to External Bodies==

===Police Services===

A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.

Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families.
In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. ([[{{PAGENAME}}#References|1]])Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.

'''Police investigations:''' Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.

Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:

* the client has provided informed consent,
* there is a lawful investigation,
* a court order, search warrant, notice to produce or other lawful instrument has been presented, or
* it is an urgent request (e.g. life and death). ([[{{PAGENAME}}#References|2]])

The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.

===Information and Privacy Commissioner===

Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.

It should be noted that the Freedom of Information and Protection of Privacy Act ([[{{PAGENAME}}#References|3]]) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act ([[{{PAGENAME}}#References|4]]) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.

===Human Rights Tribunal===
[[File:indian lady.jpg | right | frame | link=| Copyright www.shutterstock.com]]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:

* age,
* physical or mental disability,
* marital status, family status,
* race, colour, ancestry, place of origin,
* sex, sexual orientation
* religion

If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.([[{{PAGENAME}}#References|5]])

The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.

The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.

In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.

[[File:Same sex relationship.jpg | right | frame | link=| Copyright www.shutterstock.com]]

It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. ([[{{PAGENAME}}#References|6]]) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.

Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. ([[{{PAGENAME}}#References|7]])This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.

Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. ([[{{PAGENAME}}#References|8]]) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.

“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. ([[{{PAGENAME}}#References|9]]) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.

====The Process====

British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. ([[{{PAGENAME}}#References|10]])About three to five percent of all complaints received go before the Tribunal. ([[{{PAGENAME}}#References|11]])

Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."([[{{PAGENAME}}#References|12]])

The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. ([[{{PAGENAME}}#References|13]])Unrepresented complainants have a low chance at success in a hearing.([[{{PAGENAME}}#References|14]])

====Help with the Process====

The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]])

Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.

In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : BC Human Rights Code'''

|- valign=top
| width="100%" | '''Discrimination in accommodation, service and facility.'''

8 (1) A person must not, without a bona fide and reasonable justification:

*(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
*(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

|}

====International Human Rights====

There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. ([[{{PAGENAME}}#References|18]])It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. ([[{{PAGENAME}}#References|19]])

===Ombudsperson Office===

([[{{PAGENAME}}#References|20]])The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.

====Role, mandate, function====

The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can

* respond to inquiries from the public,
* conduct investigations of complaints of individual cases.

The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.

According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. ([[{{PAGENAME}}#References|21]])

The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. ([[{{PAGENAME}}#References|22]]) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. ([[{{PAGENAME}}#References|23]]) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.

====Issues====

A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not

* a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
* a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
* a policy seems to treat some people unfairly,
* a health authority provides operators with objective and enforceable standards of care,
* people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
* a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.

====Process====

Complaints to Ombudsperson may be made by a person or group of persons.([[{{PAGENAME}}#References|24]]) A complaint must be in writing. ([[{{PAGENAME}}#References|25]])The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.

====Available remedies====

The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. ([[{{PAGENAME}}#References|26]]) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.

===The Public Guardian and Trustee (PGT)===
[[File:Public guardian.jpg | right | frame | link=| Copyright www.shutterstock.com]]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating

* the personal care and health care decisions made by a representative or guardian, ([[{{PAGENAME}}#References|27]])
* the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. ([[{{PAGENAME}}#References|28]])
* adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. ([[{{PAGENAME}}#References|29]])

These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.

The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.

The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. ([[{{PAGENAME}}#References|30]])

The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. ([[{{PAGENAME}}#References|31]]) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.([[{{PAGENAME}}#References|32]])

==Directing Concerns to Review Boards==

===Mental Health Review Board===

As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.

There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. ([[{{PAGENAME}}#References|33]]) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. ([[{{PAGENAME}}#References|34]])

====Purpose====

The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. ([[{{PAGENAME}}#References|35]]) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.

The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.

The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, ([[{{PAGENAME}}#References|36]]) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

====Composition====

The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.

Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.

====Process====

A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.

Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.

If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.

====Remedies====

Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.

{| class="wikitable"
|- valign=top
| width="100%" | '''Special Note on Treatment'''

|- valign=top
| width="100%" | The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. ([[{{PAGENAME}}#References|37]])

Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. ([[{{PAGENAME}}#References|38]])

|}

===Professional Colleges & the Health Professions Review Board===

If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.

One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.

Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. ([[{{PAGENAME}}#References|39]])

For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. ([[{{PAGENAME}}#References|40]]) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.

===Community Care and Assisted Living Appeal Board===

Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. ([[{{PAGENAME}}#References|41]])

People other than the operator or licensee can appeal these exemptions. ([[{{PAGENAME}}#References|42]]) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. ([[{{PAGENAME}}#References|43]]) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.

==Addressing Systemic Concerns: BC Seniors Advocate==

The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]])

The Seniors Advocate is responsible for:

:(a) monitoring the provision of seniors' services,
:(b) analyzing issues believed to be important to the welfare of seniors generally, and
:(c) advocating in the interests of seniors. ([[{{PAGENAME}}#References|45]])

The Advocate has authority to:

:(a) identify and analyze systemic challenges faced by seniors;
:(b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
:(c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]])

The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information.

The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates; the law specifically offers a protection from retaliation for people who give information to the Seniors Advocate. ([[{{PAGENAME}}#References|47]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.

==References==
#See Bentley v. Maplewood.
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
#Personal Information Protection Act [SBC 2003] c. 63.
#BC Human Rights Code, [RSBC 1996] c. 210, s.2.
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
#Kolb. P.J. (ed.)(2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
#McNaughton., H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed January 9,2016) [“MacNaughton”]
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016)
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
#MacNaughton, p.5.
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36%, pg 9. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016)
#BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016)
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities,Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]
#WHO Wheelchair Guidelines, pg. 22.
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014).
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
#BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016) [ “No longer your decision”]
#Ombudsperson Act, s. 10(1).
#Ombudsperson Act, s. 10 (2).
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
#PGTA, s. 17(1) (c), (d), and (e).
#PGTA, s. 17(1) (b).
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed January 9,2016)
#Patients Property Act [RSBC 1996] c. 349.
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed January 9,2016)
#Mental Health Act, sections 25(2), 25(4.1) [“MHA”]
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016).
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
#MHA, s. 31.
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed January 9,2016)
#Romano,L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7. Online: http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed January 9,2016).
#See for example, Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online: http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed January 9,2016).
#VIHA. What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed January 9,2016). See for example, Community Care and Assisted Living Appeal Board.
#CCALA, s. 16.
#CCALA, S. 30 (a) and (b)
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm
#Seniors Advocate Act, s. 3 (1) [« SAA »]
#SAA, s.3 (2).
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.”

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T14:14:11Z

Charmaine Spencer: /* Addressing abuse or neglect when it happens */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1. The Residential Care Regulations (s. 52 (2))also prohibit the use of food or fluids as a reward; they are considered a type of mistreatment.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : While operators cannot be compelled to report to the Registry, a duty to report is part of the contractual responsibilities of publicly funded operators to the Ministry of Health or health authority, see: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx). That report to the Registry is to be made with seven days of the suspected staff member being suspended or terminated, pending investigation. (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”).

If the incident is considered well founded, the care aide worker may be de-registered, which will prevent him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016)
#RCR, s.77 (1) to (3).
#See Report of the Coroner into the death of Eldon Mooney. 2011-0278-0032. North Vancouver, July 16, 2011. Online : http://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/reports/investigative/mooney-eldon.pdf (Last accessed May 10, 2016).
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T14:10:55Z

Charmaine Spencer: /* Abuse and Neglect */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1. The Residential Care Regulations (s. 52 (2))also prohibit the use of food or fluids as a reward; they are considered a type of mistreatment.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : While operators cannot be compelled to report to the Registry, a duty to report is part of the contractual responsibilities of publicly funded operators to the Ministry of Health or health authority, see: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”).

If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016)
#RCR, s.77 (1) to (3).
#See Report of the Coroner into the death of Eldon Mooney. 2011-0278-0032. North Vancouver, July 16, 2011. Online : http://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/reports/investigative/mooney-eldon.pdf (Last accessed May 10, 2016).
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T13:55:20Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1. The Residential Care Regulations (s. 52 (2))also prohibit the use of food or fluids as a reward; they are considered a type of mistreatment.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016)
#RCR, s.77 (1) to (3).
#See Report of the Coroner into the death of Eldon Mooney. 2011-0278-0032. North Vancouver, July 16, 2011. Online : http://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/reports/investigative/mooney-eldon.pdf (Last accessed May 10, 2016).
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T13:48:18Z

Charmaine Spencer: /* What Do We Mean? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1. The Residential Care Regulations (s. 52 (2))also prohibit the use of food or fluids as a reward; they are considered a type of mistreatment.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:48:45Z

Charmaine Spencer: /* Resident to Resident Harms */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:46:40Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available limited data, the Office of the Seniors Advocate estimated there were between 425 and 550 reports of resident to resident aggression in 2014/15 throughout the province. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:44:12Z

Charmaine Spencer:

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) Drawing on available limited data, the Office of the Seniors Advocate estimated there were between 425 and 550 reports of resident to resident aggression in 2014/15 throughout the province. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:40:54Z

Charmaine Spencer: /* Can the facility control “visiting hours”? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:09:27Z

Charmaine Spencer: /* Can the facility control “visiting hours”? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:08:35Z

Charmaine Spencer: /* What Do We Mean? */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T08:02:46Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:57:03Z

Charmaine Spencer: /* Mechanisms to restrict some visitors */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors Services. p. 25.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:49:16Z

Charmaine Spencer: /* Mechanisms to restrict some visitors */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority), and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors Services. p. 25.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:46:40Z

Charmaine Spencer: /* Medications */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors Services. p. 25.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:42:55Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
# See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors Services. p. 25.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:34:00Z

Charmaine Spencer: /* Medications */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.([[{{PAGENAME}}#References|5]]) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T07:22:49Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
# See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T06:49:55Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Seniors Advocate Report.
# Mayo Clinic.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#RCR, s.73 (3)(d).
#RCR, s. 75 (2) (a) (i) & (ii).

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T06:33:48Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Seniors Advocate Report.
# Mayo Clinic.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#
#

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T06:33:14Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way:
“Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).”
See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Seniors Advocate Report.
# Mayo Clinic.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#
#

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T06:31:34Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way:
**“Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).”
*See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Seniors Advocate Report.
# Mayo Clinic.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#
#

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Six Pressing Issues when Living in Residential Care

2016-05-13T06:30:22Z

Charmaine Spencer: /* References */

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| Copyright www.shutterstock.com]]
Families often express concerns that antipsychotic drugs ([[{{PAGENAME}}#References|1]]) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. ([[{{PAGENAME}}#References|2]]) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. ([[{{PAGENAME}}#References|3]])

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

:a) matters of fact - Is the particular medication appropriate for this individual? and
:b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.([[{{PAGENAME}}#References|4]])

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. ([[{{PAGENAME}}#References|5]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. ([[{{PAGENAME}}#References|6]])

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

* focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
* look at risks compared to the benefits of various options,
* try out different kinds of potentially more effective approaches, and less risky interventions, plus
* focus on informed consent prior to treatment. ([[{{PAGENAME}}#References|7]])

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate's recent monitoring report has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. ([[{{PAGENAME}}#References|8]]) Antidepressants are often used for pain control for people experiencing chronic pain and are considered a mainstay in the treatment of many chronic pain conditions — even when depression isn't a factor. ([[{{PAGENAME}}#References|9]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Health Care Consent: A Quick Overview'''

|- valign=top
| width="100%" |
#Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
#If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
#Consent must be specific to the treatment being proposed.
#Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
#Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

::- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

|}

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

===The law and visiting===

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.”
Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.

However it should be noted that a person granted an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident. While in many cases, staff can simply ask the resident if the person wants that visitor on this occasion, the best approach becomes more complex for cognitively impaired residents who may or may not recognize the family member or close contact.

===Whose right is it?===

One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long standing issues have not being adequately addressed in the facility.

A 2012 Ministry of Health policy communiqué stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])

The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])

Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident. Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this can only occur when the health authority has reason to believe that the adult is being abused or neglected by that person, the situation has been investigated by the designated agency (health authority) , and the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances. For example, care facility staff can control access to residents for some infectious diseases. Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.

Under the residential care regulations, the Operator is required to record the identity of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have a legal responsibility to ensure the resident is not released or removed from the care facility to anyone except the resident’s representative or a person authorized by the representative. ([[{{PAGENAME}}#References|22]]) Also, they point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from the care facility. ([[{{PAGENAME}}#References|23]])Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself. A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?===

In some cases a care facility may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities. In some instances, staff may try to restrict visiting to daytime when there is more staff. In other instances, staff may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?===

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy. Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others. Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise of respecting privacy.

==Abuse and Neglect==

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. ([[{{PAGENAME}}#References|24]])

===What Do We Mean?===

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g. a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms that show up in residential care that are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

* belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
* makes fun of the resident’s mental or physical disability;
* makes racial, cultural or sexual orientation slurs;
* threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

In the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[{{PAGENAME}}#References|25]])

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1.

===Figure 1===

{| class="wikitable"
|- valign=top
| width="40%" | '''Abuse and Neglect Definitions Under the Residential Care Regulations'''
| width="40%" | '''Abuse and Neglect Definitions under the Adult Guardianship Act'''

|- valign=top
| width="40%" | '''"emotional abuse"''' means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;
| width="40%" | '''"abuse"''' means the deliberate mistreatment of an adult that causes the adult 
:(a) physical, mental or emotional harm, or
:(b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

|- valign=top
| width="40%" | '''"financial abuse"''' means 
:(a) the misuse of the funds and assets of a person in care by a person not in care, or
:(b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
| width="40%" |

|- valign=top
| width="40%" | '''"neglect"''' means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;
| width="40%" | '''"neglect"''' means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

|- valign=top
| width="40%" | '''"physical abuse"''' means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
| width="40%" |

|- valign=top
| width="40%" | '''"sexual abuse"''' means any sexual behaviour directed towards a person in care and includes 
:(a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;
| width="40%" |

|}

===Addressing abuse or neglect when it happens===

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

* that person’s representative or contact person,
* the medical practitioner or nurse practitioner responsible for the person’s care,
* the regional medical health officer and
* The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.([[{{PAGENAME}}#References|26]])

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : Operators cannot be compelled to report to the Registry). (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”). If the incident is considered well founded, the care aide worker may be de-registered, which prevents him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

===Video-surveillance and abuse or neglect===

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

* repeated falls,
* unexplained or poorly explained bruises,
* a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

* the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
* family feel their questions or concerns about specific situations have not been adequately addressed, or
* situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. ([[{{PAGENAME}}#References|27]]) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

* ways of promoting resident’s safety
* intrusion on the resident’s privacy,
* consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
* the rights of third parties (staff who are not suspected of harm who may also be recorded),
* use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
* interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

* What is the objective?
* What is the means used? and
* Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. ([[{{PAGENAME}}#References|28]])

==Resident to Resident Harms==

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. ([[{{PAGENAME}}#References|29]]) The Office of the Seniors Advocate found that there were ____ reports of resident aggression. ([[{{PAGENAME}}#References|30]]) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”([[{{PAGENAME}}#References|31]])

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. ([[{{PAGENAME}}#References|32]]) The resident factors for aggression generally include:

* where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
* certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. ([[{{PAGENAME}}#References|33]]) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” ([[{{PAGENAME}}#References|34]])

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. ([[{{PAGENAME}}#References|35]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[{{PAGENAME}}#References|36]]) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

* increase the staff levels in the facility;
* have specific staff in-house in every care facility with behaviour care expertise;
* have more designated behaviour units to care for residents with severe aggressive behaviours; and,
* have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

* what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
* should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite ''mens rea'' for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

==Reporting Responsibilities==

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. ([[{{PAGENAME}}#References|37]]) These incidents include:

* “abuse”, including emotional, financial, physical, and sexual abuse
* “aggression between persons in care”
* "aggressive or unusual behaviour"
* "attempted suicide"
* "choking"
* "death of a person in care”;
* "disease outbreak or occurrence"
* "emergency restraint"
* "fall”
* "food poisoning"
* "medication error"
* "missing or wandering person"
* "motor vehicle injury”
* "neglect”
* "other injury"
* “poisoning"
* "service delivery problem"
* "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).([[{{PAGENAME}}#References|38]]) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

* to ensure a timely response by the facility to the incident,
* to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
* to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
* for data collection and analysis of health authority-wide. ([[{{PAGENAME}}#References|39]])

===Reporting is mandatory===

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances.
People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." ([[{{PAGENAME}}#References|40]])

The operator also must also maintain a written log of:

* Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
* Unexpected events involving residents.([[{{PAGENAME}}#References|41]])

{| class="wikitable"
|- valign=top
| width="100%" | '''Special note : Harm to the resident discovered outside the care facility'''

|- valign=top
| width="100%" | Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident.

However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.([[{{PAGENAME}}#References|42]])

|}

==Restraints==

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).([[{{PAGENAME}}#References|43]]) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

* staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
* Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.([[{{PAGENAME}}#References|44]])

===The law on restraints===

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."([[{{PAGENAME}}#References|45]])

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

:(a) for the purpose of punishment or discipline, or
:(b) for the convenience of employees.

===Circumstances in which restraints can be used===

Restraints may be used in two circumstances:

:(a) in an emergency, or ([[{{PAGENAME}}#References|46]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|47]])

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

===Restrictions===

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

:(a) the restraint is necessary to protect the person in care or others from serious physical harm,
:(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and
:(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

:(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;
:(b) the employees administering the restraint must
::(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and
::(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;
:(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

===Written agreement to the use of restraints===

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

:(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

:(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.
This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

===Post emergency restraint requirements===

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.([[{{PAGENAME}}#References|48]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|49]])

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

* have agreement in writing from the resident or their representative, if applicable and
* the medical practitioner or nurse practitioner responsible for the resident’s health care. ([[{{PAGENAME}}#References|50]])

==References==
#BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
#Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
#Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
#BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
#BC anti-psychotic drug review, pg. 8 and 9.
#BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
#Best practice guideline for dementia.
# Seniors Advocate Report.
# Mayo Clinic.
#Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
##(a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
###NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
# Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
#RCR, s. 57 (2).
#Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
#Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
#Ministry of Health Policy Communiqué.
#BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
#RCR, s.60 (b).
#AGA, s. 51 (e) (iii).
#AGA, s. 51 (e) (iii).
#RCR, s. 78.1(e)(i).
#RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
#RCR, s. 58 (1).
#RCR, s. 58 (2).
#Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident.
#See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
#RCR, s. 77.
#See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
# See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
#Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
# Office of the Seniors Advocate report.
#RCR, Schedule D, Reportable Incident.
#Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
#Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
#See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
#(April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
#Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf [Last accessed April 30, 2014]
#RCR, s.77 (1) to (3).
#See Coroner Services, Eldon Mooney.
#Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
#ACE.
#RCR, s. 88.
#AGA, s. 45 (1).
#ACE.
#Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
#RCR, s. 1.
#RCR, s. 74 (1).
#RCR, s. 74 (1) (b).
#RCR, s. 73 (3) (a).
#
#

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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