View source for Six Pressing Issues when Living in Residential Care

{{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded = chapter4}}

==Medications==
[[File:Medication.jpg | right | frame | link=| <span style="font-size:60%;">Copyright www.shutterstock.com</span>]]
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 <span class="noglossary">standing</span> 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<br/>
:(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 <br/>
:(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 <br/>
:(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]])

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==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|41]]) 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|42]])

===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|43]])
 
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|44]])
:(b) if there is a prior written agreement to the use of the restraint. ([[{{PAGENAME}}#References|45]])
  
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|46]]) This “information and advice” is to be documented in the resident’s care plan.([[{{PAGENAME}}#References|47]])
 
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|48]])

==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. 
#
#
#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. 
#RCR, s. 57 (1).
#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 1, 2014). [“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).
# Office of the Seniors Advocate.
#
#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). 
#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).
#Residential Care Regulations, B.C. Reg. 96/2009, s. 1.  {“RCR”)
#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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