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{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter6}}

When a person is being admitted to the residential care facility for more than 30 days, the operator is required to develop an individualized care plan for the person. ([[{{PAGENAME}}#References|1]])Sections 81 and 82 of the Residential Care Regulation  sets out the components of a care plan. ([[{{PAGENAME}}#References|2]]) The operator has a responsibility to ensure the care plan is properly implemented, reviewed if there is a substantial change in circumstances, and if there is no change, the plan must be reviewed at least once a year.

By law, the resident’s care plan must be developed (and later reviewed or modified) to the extent reasonably practical, with the participation of the resident, or if the person in care is not capable of participating, with the resident’s “representative”. ([[{{PAGENAME}}#References|3]]) The term “representative” as it is used in the Residential Care Regulation  means a person with authority under the Health Care (Consent) and Care Facility (Admission) Act (including a TSDM) or the Patients Property Act, or under an agreement under the Representation Agreement Act to make health or personal care decisions on behalf of the adult. ([[{{PAGENAME}}#References|4]])This is a relatively circumscribed group.

In some instances, particularly where the resident has not formally appointed his or her own substitute decision-maker, the health care provider relies on the statutory list of substitute decision-makers. Some health care providers in residential care skirt the process and turn to the person they feel will be most supportive of the decisions they want to make, as opposed to one who knows what the resident wants best.
The care plan is also required to be developed in a manner that takes into account the unique abilities, physical, social and emotional needs, and cultural and spiritual preferences of the person in care. ([[{{PAGENAME}}#References|5]])The care plan is not intended to be a one way process of care providers deciding what is needed or they believe is in the resident’s best interest. Residents have the right to have it developed “on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.” That typically involves information from the residents and those who know the resident well.

==Consent and Care Plans==

Several important consent issues come up in the context of the care plans. First, care planning frequently becomes conversations among care providers only; the resident is treated as incapable and therefore excluded. A 2011 review also found families in British Columbia experience challenges in interacting with health care professionals and residential care facility staff. These included:

* family were not being effectively included in the care plan development
* their legal authority as health care decision makers (including as temporary substitute decision-makers) was not recognized and respected
* their consent was not sought when treatment options are considered and provided.
 
Specifically family might not be informed about the care conference or were given short notice; people might not be advised of their role and how they might participate more effectively; residents and others are not given real opportunities to help inform the care process; and key persons such as physicians were not part of the conference. ([[{{PAGENAME}}#References|6]])
 
Informed consent is typically based on having good information. The BC Ombudsperson’s Best of Care report has identified the following concerns from residents and their families:

* lack of adequate understanding of the level of care that seniors are entitled to receive in residential care facilities;
* reluctance to raise concerns about the level of care that facilities provide, in part because they were not confident about what residents were entitled to receive or what their rights were; 
* the risk of raising concerns because residents were dependent on others for their care; 
* lack of good understanding of the legal obligations of facility operators;
* difficulty determining who was responsible for the delivery of specific services and with whom concerns about these services could be raised. This was especially true when service delivery was contracted out to third parties. ([[{{PAGENAME}}#References|7]])

==Rights Associated with Care Plan Consent==

The provisions of the Health Care (Consent) and Care Facility (Admission) Act also apply to residents of long-term care facilities. A Care Plan involves a combination of health care and personal care decisions, as well as in some instances, financial decisions. ([[{{PAGENAME}}#References|8]])The resident has the right to participate in the assessment of his or her physical and mental capabilities, needs, and preferences, as well as in developing and revising a plan of care.
 
In order to be able to participate meaningfully, residents have the right to have someone explain to them, in language and terms that the residents understand, what has been assessed and how, as well as the proposed plan of care. After being informed (in plain language) of the consequences of any proposed treatment, and of not receiving the treatment, the resident has the right to give or refuse to give informed consent. ([[{{PAGENAME}}#References|9]])  
 
Residents have the right to request and receive a "second opinion" from an independent health care professional, regarding any aspect of their care. The resident has the right to be involved in, and receive independent advice regarding any aspect of the resident's care. This includes any decision regarding the resident's discharge or transfer from the facility, and would also include any decision regarding transfer of the resident within a facility, (i.e., moving to another room or wing).
 
==Advance Care Planning - Advance Care Plan and Advance Care Directives== 
[[File:advance care.jpg | right | frame | link=| <span style="font-size:60%;">Copyright www.shutterstock.com</span>]]
Advance care planning is the communication process between a capable adult, family or other key people in their lives, and health care providers to ensure that the adult’s beliefs, values and wishes for future health care are known in the event that the adult is incapable of making health care decisions when the health care is required. ([[{{PAGENAME}}#References|10]]) Although advance care planning is supposed to be an ongoing process of communication, health care providers are often given the impression that it is a linear process and that once the documentation is done, the process is complete.

Advance care planning was originally intended as a process by which people could exert their autonomy over what happened to them, in the event they became incapable and were no longer able to directly express those wishes. Unfortunately it has sometimes become a process done to and imposed on the older adult, as opposed to done with the older adult.

An advance care plan is a written summary of a capable adult’s beliefs, values and wishes for future health care, in the event the adult is incapable when the health care is required. The plan may simply be a statement of wishes, or it may include an advance directive or a representation agreement in which the adult names another person to make health care decisions on behalf of the adult.
 
An advance directive is a legal document that provides consent or a refusal for certain types of health care before  the need for health care arises. It is a capable adult's written instructions expressed directly to their health care provider, or to their representative if they have named one in a representation agreement.
 
Advance directives are legally binding documents and only apply to health care. To be a valid advance directive, it must comply with the legal requirements for the instructions, plus comply with the law on how it is signed and witnessed.([[{{PAGENAME}}#References|11]])  Under the Health Care (Consent) and Care Facility (Admission) Act, an advance directive:

* must not be mandatory - an adult must not be required to have an advance directive as a condition of receiving any good or service. ([[{{PAGENAME}}#References|12]])   
* may not include anything that is prohibited by law or an instruction to omit to do anything that is required by law. 
* cannot include instructions about any types of health care restricted for a temporary substitute decision-maker.

==Consent and Advance Care Directives==

As noted in the chapter on admissions, in recent years, more and more care facility operators are inquiring at admission whether the person has an advance directive. Accreditation processes and mandated health care system tools such as the Resident Assessment Instrument - Minimum Data Set (RAI MDS) may leave the health care providers with the belief the residents must have advance directives, and may leave them with erroneous or incomplete information about the difference between informed consent and advance care plans. ([[{{PAGENAME}}#References|13]])
 
Unfortunately residents and families are sometimes given the impression the resident must have an advance care directive or other advance care planning as a condition for admission or to remain there. The law is clear- advance care directives are not mandatory and cannot be required as a condition of receiving services. ([[{{PAGENAME}}#References|14]]) The Public Guardian and Trustee specifically notes:
 
:''“You do not have to make an advance directive. It’s your choice. It is one tool that you can use to plan for your future. A service provider may not require you to make one as a condition of receiving goods or services.”''

===What can care providers do?===

Just because a senior has moved into a long-term care facility does not automatically mean that he or she needs an enduring power of attorney, representation agreement or advance directive. The senior may continue to manage his or her own finances during any period of time that he or she is a resident there. However, when a senior moves into a long-term care facility, it may be a good time to consider whether he or she wants to prepare these documents to address possible future needs or whether he or she wants some help with financial management or other decisions, now, while he or she is still capable. 

===What are the capability requirements to make an Advance Directive?===

The person must be capable of understanding the type of health care instruction it deals with and the consequences of giving or refusing consent to it. The person must also understand that if the person makes an advance directive and the instruction applies to the specific health care situation arising while the person is incapable, a health care provider will only follow the instruction. They will not select someone to be a temporary substitute decision-maker.

==Common Areas of Misunderstanding for Advance Health Care Consent==

===Standardized Forms===

In recent years British Columbia has been moving to develop standardized health care planning and end of life intervention orders. A recent review of health care planning and related policy documents in use in Canada, including one from British Columbia pointed out a number of common errors in the forms:
 
* They failed to distinguish between and confused consent to treatment, prior capable wishes, values and beliefs (advance care planning), and physician orders based on the standard of care; ([[{{PAGENAME}}#References|15]]) 
* They left the erroneous impression that substitute decisionmakers can express new wishes on behalf of residents, whereas they can only recount prior capable wishes expressed by the person; 
* They seemed to suggest that physicians can directly implement advance directives, without utilizing the substitute decisionmakers or anyone else to interpret whether the advance directive actually applied in those circumstances.* ([[{{PAGENAME}}#References|16]])
  
One of the documents reviewed was Medical Orders for Scope of Treatment (MOST) developed by Fraser Health and promoted by the Ministry of Health.([[{{PAGENAME}}#References|17]]) This is a system of medical orders and standardized forms to be used across care settings that record physicians’ orders regarding end-of-life medical interventions, along with standardized forms recording patient advance care plans. The MOSTs are to be reviewed at least once a year.

Tucked in the documents among many details is the observation “As long the adult is capable of providing consent, consent should always be sought from the adult directly and not from their MOST order, Committee of Person/Personal Guardian, Representative, Advance Directive, or Temporary Substitute Decision Maker (TSDM).“ This point is very important, but it is  given little prominence in the overall scheme.  Like many other policy and education documents on advance care planning, MOST and the policy documents that accompanied it contained the common legal errors noted above.

===Tick Box Forms===

Advance care planning and advance care directives, in particular, have been widely promoted in health. The original efforts began as ways of expressing patient autonomy. In recent years, the rationale in health care policy shifted more to cost reduction, in part predicated on the belief that older adults especially at the later stages of life were “using more than their fair share of health resources”. ([[{{PAGENAME}}#References|18]])
Many advance care planning forms are tick-box forms: forms which require patients to choose from a narrow field of pre-selected options for future care. The use of tick-box advance care planning forms appears to be widespread.
 
It has been pointed out these forms unduly restrict the wishes that may be solicited from people, and the information expressed in these forms may not be particularly useful to a future substitute decisionmakers (“if indeed one is consulted”).
 
The forms also generally make no attempt to place the person’s expression of wishes in the context of their current health condition, or to discuss the risks and benefits of treatment. Instead, they simply request that people express their future wishes about, for example, whether they want to be hospitalized and receive antibiotics, without grounding the application of that wish in likely hospitalizations relating to the patient’s present health condition. It has been pointed out that these level-of-care forms in particular seem to be used frequently as consents although they are being portrayed as advance directives. They are completed without the information required for a valid informed consent.


==References==
#The Residents Bill of Rights notes under “Commitment to care” that “An adult person in care has the right to a care plan developed: (a) specifically for him or her, and (b) on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.” 
#S. 81(3) of the RCR note that the care plan needs to address ten areas : medication, “behavioural intervention”; use of restraints; oral health care; nutrition (including therapeutic diets); recreation and leisure; fall prevention; “elopement risk”; any condition or requirement associated with the resident’s admission to the community care facility under the Mental Health Act.
#HCCCFA defines "representative" in this manner means a person authorized by a representation agreement to make or help in making decisions on behalf of another and includes an alternate representative. This would seem to limit the support for anyone who does not have a representative under the Representation Agreement Act. However as noted, 
#Nothing in this regulation confers on the person any greater authority to make health or personal care decisions than the person has under those Acts or an agreement under the Representation Agreement Act.
#The Residents Bill of Rights notes under “Commitment to care” that “An adult person in care has the right to a care plan developed: (a) specifically for him or her, and (b) on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.”
#Antipsychotic drug review, pg. 18. 
#Ombuds, Best of Care, Part 1. 
#ACE: Decisionmaking,
#ACE : Decision Making.
#Ministry of Health. (July 18, 2012) Advance care planning - frequently asked questions. Online:  http://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/advance-care-planning (Last accessed: January 9, 2016). 
#AGA, s. 3 (1)
#Health Care (Consent) and Care Facility (Admission) Act, s. 19.91.
#Wahl, J., Dykeman, M.J., & Gray, B. (January 2014). Health Care Consent And Advance Care Planning In Ontario- Legal Capacity, Decision‐Making and Guardianship. Commissioned by the Law Commission of Ontario, p. 203 and 205. Online: http://www.lco-cdo.org/capacity-guardianship-commissioned-paper-ace-ddo.pdf [“ACE_ LCO”] (Last accessed: January 9, 2016).
#HCCCFA, s. 19.91.
#ACE_ LCO, p. 205.
#While advance directive can be directly relied on by physicians in British Columbia, they have to ascertain whether the advance directive applies in the situation, and if the advance directive is part of a representation agreement, the representative may be the interpreter. 
#Fraser Health. Medical Orders for Scope of Treatment (MOST) and Advance Care Planning (ACP). [Date Approved: June 13, 2012.]
#Malpas, P.J. (May, 2011). Advance directives and older people: Ethical challenges in the promotion of advance directives in New Zealand. Journal of Medical Ethics: Journal of the Institute of Medical Ethics. 37(5). pp. 285-289.

{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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