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{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter3}}

Health authorities sometimes give the prospective residents and families the impression that they must accept the first bed in a care facility that becomes available. This is not quite accurate. It does not reflect the letter or spirit of the law, the Model Standards ([[{{PAGENAME}}#References|1]]) nor Home and Community Care Policy. The Model Standards state:

:Prospective residents, families and caregivers are [to be] provided with sufficient information to make a decision about the suitability of the facility.([[{{PAGENAME}}#References|2]])

The Home and Community Care Policy states that health authorities must:

* ensure that residential care services are delivered in compliance with the Residential Care Regulation; 
* establish local service delivery models that will provide clients with access to residential care services within their community or within accessible distance to their community.([[{{PAGENAME}}#References|3]])

==What is “Appropriate”?==

The term “appropriate” is not defined by the Ministry of Health or the health authorities. As a result it is subject to different interpretations. Administratively, a placement may appear medically appropriate if it meets a minimum standard of care, but from a person centred (resident’s) perspective looking at their total wellbeing, it may not. The British Columbia Office of the Ombudsperson stresses “Without a consistent and clear understanding of how the appropriateness of a placement is determined, seniors’ preferences may not be given sufficient weight.” ([[{{PAGENAME}}#References|4]])

It is important to recognize that some older adults may have fears about residential care placement generally, as well as legitimate concerns about whether a particular care facility is appropriate to their needs. As legal advocates have pointed out there are many reasons affecting whether or not an applicant or the substitute decides a particular facility is appropriate. These reasons may have nothing to do with how attractive the facility is or its reputation for providing good care. The applicant may decide that a care facility is too far away from a spouse, or partner, family or friends who will want to visit. Cultural or religious preferences may also play an important part in deciding. ([[{{PAGENAME}}#References|5]])

The Model Standards identify a number of important considerations which the residents and families should know about the facility prior to admission, including its philosophy of care and pertinent policies on alcohol, smoking, visiting, and use of restraints.([[{{PAGENAME}}#References|6]])
 
An appropriate location can be one that allows the resident to remain socially engaged, commonly by remaining near the community or area. “Appropriate” should also take into consideration the perspective of those who will be the key contacts for the resident (accessible distance). Location is not necessarily the determining factor, but it can be a prominent one for many older adults, their spouse or partner and their families. It can be particularly important in residential care: the resident who does not have regular contact with family or friends is more likely to be isolated. Isolated residents can be more susceptible to harms, and if these situations occur, the problems can easily go unidentified for a long period of time.

The facility must also have the resources to appropriately support this prospective resident, along with others. ([[{{PAGENAME}}#References|7]]) For example if the prospective resident has dementia, “appropriateness” means having staff who are well trained in dementia care and understand the needs and behaviours of people with dementia, especially if there has been evidence that the person has “responsive behaviours”.
[[File:Dementia.jpg | right | frame | link=| <span style="font-size:60%;">Copyright www.shutterstock.com</span>]]
“Appropriate” can depend on a prospective resident’s abilities. A resident may have lost the ability to communicate verbally due to dementia, or may have never had the ability to communicate in English. Appropriate may mean the availability of staff who can communicate in that person’s current language in order to provide good personal care, health care and support emotional wellbeing. The importance of appropriate “communication” services in patients accessing publicly funded health care has been recognized by the Supreme Court of Canada. ([[{{PAGENAME}}#References|8]])The responsibility to accommodate different prospective and current residents’ needs is described in greater detail in the Chapter Five “Rights, Remedies and Problem Resolution” (Human Rights). 

Appropriate placement for an lesbian, gay, bisexual or transsexual (LBGT) senior would be a facility that is “gay friendly”, that feels “safe“ to the resident and the persons that are important to them, that recognizes their relationships, and facilitates inclusive activities- ones in which the LGBT resident feels she or he can participate (“Family Days” become “Family and Friends Days”). ([[{{PAGENAME}}#References|9]])

==The Effect of Declining an Offered Placement==

Turning down a facility has implications, and so does accepting it.

It is increasingly common place for families of hospitalized older adults who need residential care to be told that “You must accept the facility selected. You can apply to transfer to another facility”. They are told if they do not accept, their parent or relative will lose their urgent status, and will be temporarily or permanently removed from the region’s residential care waiting list. ([[{{PAGENAME}}#References|10]]) As previously noted in some health authorities, people are also informed they must wait at least two months before applying for a transfer. ([[{{PAGENAME}}#References|11]]) These types of statements and pressures undermine any semblance of people giving “informed consent” to the admission to a facility.

The statements also do not accord with Ministry of Health’s Home and Community Care Policy, which emphasizes among other things, that

''“Health authorities must facilitate access to long-term residential care services consistent with the following requirements

* manage access to residential care services and transfers of clients between residential care facilities, based on the preference of the client and the available resources in the community;
* ensure that a client has the opportunity to identify a preferred facility or location;
* manage, in an equitable manner, a client’s transfer to a preferred facility where a client’s request for a preferred facility cannot be met on admission…”'' ([[{{PAGENAME}}#References|12]])

This last requirement is particularly important. Health Authorities note that priority for placement is always given to those “with the highest need” and “at the greatest risk”. ([[{{PAGENAME}}#References|13]])
  
In some cases, older adults in crisis require residential care now. People may decide to try private pay facilities as a short term measure, only to learn that:

* if they “choose” to be admitted to private pay facility privately on a temporary basis, they actually lose their position on the waiting list because from the health authority perspective, they are housed and their needs are being met.

* if they “choose” to pay privately on a temporary basis that does not guarantee the person will be transferred to a subsidized bed in the same building. ([[{{PAGENAME}}#References|14]]) 

The BC Ombudsperson has formally identified these practices as administratively unfair. Health authorities also were not informing residents and families whether the beds in a particular facility in that health region were temporarily funded (subsidized) beds or not, meaning that residents could end up paying unsubsidized rates for the same bed. ([[{{PAGENAME}}#References|15]]) The BC Ombudsperson recommended that older adults and families be given better information.

Arguably, simply informing a prospective resident about the effects of the decision in advance does not make it any fairer or accord with key aspects of residential care policy. It is illusory to call this informed choice. The information may be there, the choice is not.

==The Operator’s Authority to Decline Certain People==

Residential care operators note that they sometimes feel under pressure from the Health Authorities to accept any prospective resident being offered by the health authority for admission to the facility. ([[{{PAGENAME}}#References|16]]) As will be discussed further in Chapter 4 on “Legal Issues When Living in Residential Care “, accepting residents who may be unsafe to live there can sometimes cause safety issues  that significantly affect the residents and staff. At the same time, there are responsibilities on public and private operators to reasonably accommodate the needs of prospective and current residents.

The Community Care and Assisted Living Act specifies that as part of the standards to be maintained, the Operator must operate the community care facility in a manner that will promote the health, safety and dignity of persons in care (s. 7(1) (b)). Part of this includes an adequate and fair screening process. See below.

===Residential Care Regulations state===

46 (1) A licensee may accommodate only those persons who will receive both safe and adequate care in the community care facility.
 
====Admission screening====
 
47 (1) Before admitting a person to a community care facility, a licensee must screen the person to ensure the person will receive both safe and adequate care if admitted to the community care facility.
 
:(2) A licensee must consider, as part of the screening process under subsection (1), all of the following: 
::(a) the training and experience of employees, the number of employees and patterns of employee coverage; 
::(b) the design of the community care facility, its construction, and the facilities and equipment within the community care facility; 
::(c) the needs of the person, including any needs that should be identified specifically in a care plan;
::(d) the health, safety and dignity of other persons in care;
::(e) any criteria set by, or advice or information from, a funding program.
     
==References==
#British Columbia Ministry of Health and Ministry Responsible for Seniors. (April 1999). Model Standards for Continuing Care and Extended Care Services. Online: http://www.health.gov.bc.ca/library/publications/year/1999/modelstandardsofcare.pdf   ( “Model Standards”) (Last accessed  January 9, 2016).
#Model Standards . Residential Services. Pre-Admission. Standard 1. 
#Home and Community Care Policy Manual. Chapter: 6 Residential Care Services Number: 6.A. Section: A General Description and Definitions . Subsection: Effective: January 1, 2013
#Ombuds, Best of Care, p. 227.
#Adapted from ACE, LTC Manual, Chapter 2 (2.17).
#Other matters that can affect the degree a facility is appropriate are the care and specific services; the facility's organizational structure; types and qualifications of staff; access to community resources (e.g. advocacy groups, counsellors and volunteer services); physical environment and resident's personal space and furnishings; programs, services, supports; and, pertinent policies related to care planning, food services, medications, smoking, alcohol use, visiting, restraints, pets, per diem cost, personal charges (e.g. dental), and personal belongings.
#There are legal responsibilities to accommodate to the needs of residents.
#See: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
#See for example, Sussman, T.  Churchill, M.,  Brotman, S. Chamberland, L..et al. (2012) “Identifying barriers, developing solutions: addressing the health and social needs of gay, lesbian, bisexual and transgender older adults who reside in long term care. “ Montreal, Quebec. Or Qmunity Generations. Aging Out Project Policy Dialogue. (November 19, 2013. Burnaby. BC), 
#See for example,  the Vancouver Island Health Authority Residential Care Guide at page 6 states “If the first bed offered is not accepted, the client is no longer considered eligible or accepted for residential care. Clients in hospital who do not accept the first appropriate bed will be discharged.” 
#See VIHA, ibid. pg. 6.
#Chapter: 6 Residential Care Services Number: 6.D Section: D Access To Services.
#See: Interior Health.”Accessing Residential Care. “ Online : http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx (Last accessed  January 9, 2016.
#See: 
##Interior Health: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx 
##Fraser Health : http://www.fraserhealth.ca/media/Residential_Care_in_FraserHealthweb.pdf (Last accessed  January 9, 2016).
#Ombuds, Best of Care. Finding 80 and Recommendation 104.
#BC Care  Provider Association. Residential Care Health and Safety Guidelines. A Guidebook. Online : http://www.bccare.ca/wp-content/uploads/bccare_safety_grid_v11.pdf  Last accessed  January 9, 2016).

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