View source for Chapter Five Legal Issues in Residential Care References

==References==

#Meadus, J. Complaints in Long Term Care Home. Advocacy Centre for the Elderly, Toronto, ON/ Online: http://www.acelaw.ca/appimages/file/Complaints%20in%20LTC%20-%202013.pdf   [Last accessed May 1, 2014]
#Best of Care Getting It Right For Seniors In British Columbia (Part 2), Public  Report 47, p. 310, Regulations (Best of Care, Part 2).
#See for example: 
##Webb, G. (2013). The prevention of abuse and neglect in Ontario long-term care homes. Advocacy Centre for the Elderly. p. 4 Online http://www.acelaw.ca/appimages/file/Prevention%20of%20Abuse%20&%20Neglect%20in%20LTC-2013.pdf  (Last accessed May 1, 2014)
##Estabrooks, C.A., Poss, J. W., Squires , J.E., Teare, G. F., Morgan, D.G., Stewart, N., Doupe , M.B., Cummings, G.G. & Norton, P.G. (2013). A proﬁle of residents in prairie nursing homes Canadian Journal on Aging / La Revue canadienne du vieillissement 32 (3), 223 – 231.
##Berta, W., Laporte, A., Zarnett, D., Valdmanis, V., & Anderson, G. (2006). A pan-Canadian perspective on institutional long term care. Health Policy, 79 (2–3), 175 – 194.
##Canadian Union of Public Employees .Residential long-term care in Canada our vision for better seniors’ care. Online : http://cupe.ca/updir/CUPE-long-term-care-seniors-care-vision.pdf (Last accessed May 1, 2014)
##Spencer, C., Charpentier, M., McDonald, L., Beaulieu, M., Harbison, J., Hirst, S. and Podnieks, E. (2008). National Snapshot: “Where things currently stand” – Executive Summary. Prepared for the national project A Way Forward: Promising Approaches to Abuse Prevention in Institutional Settings. University of Toronto, Institute for Life Course and Aging.
#See, Kozak & Luckawieki, pg. 28. Also:
##Hansberry, M.R., Chen, E. & Gorbien, M. J. (2005). Dementia and elder abuse. Clinics in Geriatric Medicine. 21 (2), p. 315-332.
##Centers for Excellence on Elder Abuse and Neglect, University of California, Irvine. How at risk for abuse are people with dementia? Online: http://www.centeronelderabuse.org/docs/PwDementia_Factsheet.pdf  (Last accessed May 1, 2014)
#Drance, E. Residents Injuring Other Residents: What is Happening? What is Bring Done? 2013 Friesen Conference. Online : http://www.sfu.ca/uploads/page/05/Friesen2013_Drance.pdf  (Last accessed May 1, 2014)
#RCR Regulations, s. 60. 
#CCALA. s. 22 (3) and Regulations, 
#Human Rights Code [RSBC 1996] c.  210, s.43.
#RCR Regulations, s. 48 (b)
#RCR Regulations, s. 89.
#BC Ombudsperson (February 2012).  Best of Care Getting It Right For Seniors In British Columbia (Part 2), Public  Report 47.,  F. 117  (“Ombuds, Best of Care”).
#Ombuds, Best of Care, Recommendation 148.
#It can make it harder  for the operator to prioritize  the concerns in the facility.   Some operators may simply leave matters to the last and yet legally be “in time”; other may respond “in time” but in an unsatisfactory manner
#For more information on control of visiting, see Chapter 4 on Legal Issues When Living in  Residential Care.
#RCR Regulations, s. 60 (b)
#RCR Regulations, S. 60 (c)
#CCALA, s. 22
#CCALA , s. 22 (3) - must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service
#The AGA was raised  in the  residential care case of Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 to prevent family from  removing Margot Bentley from the facility when the family disagreed  with the staff  about spoon feeding  her, apparently  against her pre-expressed wishes.   [“Bentley v. Maplewood”]
#AGA, s. 46 (4) These include, for example protections from being threatened with dismissal, refusing to employ or to continue to employ a person, or discriminating against a person with respect to employment or a term or condition of employment or membership in a profession or trade union.
#RCR,  s. 60 (b)
#CCALA, s. 22 (3)- must not alter, interrupt,  or discontinue  service
#AGA, s. 46 (1)
#AGA, s. 46  (4) (b)
#AGA, s. 46 (4)
#AGA,  s. 46 (4) (d)
#CCALA, s. 22 (1)
#CCALA, s. 22 (2)
#AGA, s. 46 (1)
#AGA, s. 46 ( a), (c)  and (d).
#AGA,  s. 46 (4) (d)
#CCALA, s. 22 (1)
#AGA, s. 46 (1)
#AGA, s. 46 (4)
#AGA,  s. 46 (4) (d)
#Leisureworld  (Ontario). The  use of defamation is considered a SLAPP lawsuit (Strategic Lawsuits Against Public Participation,) basically brought to  prevent complaints being raised.
#Canadian Bar Association, BC  Branch. Defamation: Libel and Slander , Script 24. Online: http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240  (Last accessed May 1, 2014)
#Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640
#Office of the Ombudsperson Best of Care Part 1 , pg 28-29. 
#Report on Assisted Living in BC. BCLI Report no. 72, CCEL Report no. 7 September 2013, pg.  [“Assisted Living}
#Assisted Living  
#See Bentley v. Maplewood.
#CCALA, s. 7 (1) (c) and (c.1) (i) and (ii).
#Specifically the Health Care (Consent) and Care Facility Admission Act, the Patients Property Act,  and the Representation Agreement Act.
#Ministry of Health. Community Care Facilities . “Residents Bill of Rights”. Online: http://www.health.gov.bc.ca/ccf/residents_bill_of_rights.html  [“Bill of Rights”] (Last accessed May 1, 2014)
#Bill of Rights.
#RCR, s. 4 (a).
#Bill of  Rights , s. 4 (b). Note : A summary of the care facility’s  inspection record is also available online.
#Residents’ Bill of  Rights, s. 4 (c ) and (d).
#Residents’ Bill of  Rights, s. 4 (e).
#Guidelines, p.2
#Ministry of Health. Home and Community Care. Accountability: Family and Resident Councils. Online http://www2.gov.bc.ca/gov/topic.page?id=96139325762343BB9F289A0C0F73D868  (Last accessed May 1, 2014)
#Ostensibly the reason for not including people whose family are no longer residents at the facility  is a fear of “political advocacy”.
#For  example Ontario’s Long-Term Care Homes Act, 2007, S.O. 2007, c. 8,  s. 59-60  identifies the responsibility of the licensee  to promote the establishment of the Family Council and respond to  Council  concerns in a specific timeframe. It  sets out specific powers of the Council including rights to see the Licensee’s funding agreement information.
#RCR, s. 38.
#RCR, s. 40 (1).
#Criminal Records Review Act [RSBC 1996] c. 86
#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/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf  (Last accessed May 1, 2014).
#See: Provincial Health Services Authority. Patient Care Quality Office. Online : http://www.phsa.ca/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf  (Last accessed May 1, 2014). 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”]   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 May 1, 2014)
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed May 1, 2014)
#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 May 1, 2014)
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed May 1, 2014)
#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 May 1, 2014)
#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. Online : http://www.health.gov.bc.ca/ccf/publications/a-guide-to-community-care-facility-licensing.pdf  (Last accessed May 1, 2014) [ “Community care licensing guide”]
#Ombuds, Best of Care, p. 348.
#http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf  (Last accessed May 1, 2014)
#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 May 1, 2014)
#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 May 1, 2014)
#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 May 1, 2014)
#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 May 1, 2014)
#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 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 May 1, 2014) [“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. http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2010-2011.pdf (Last accessed May 1, 2014). In 2012/ 13, 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.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf (Last accessed May 1, 2014)
#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.gov.bc.ca/annual_reports/info/annual_report_2011-2012.pdf. (Last accessed May 1, 2014). 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.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf  (Last accessed May 1, 2014)
#BC Human Rights Coalition. Online: http://www.bchrcoalition.org  (Last accessed May 1, 2014)
#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.ombudsman.bc.ca/images/resources/reports/Special_Reports/no_longer_your_decision.pdf (Last accessed May 1, 2014) [ “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 May 1, 2014)
#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 May 1, 2014)
#Mental Health Act, sections 25(2), 25(4.1)  [ “MHA”]
#Mental Health Review Board.  Online: http://www.mentalhealthreviewboard.gov.bc.ca/  (Last accessed May 1, 2014).
#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 May 1, 2014)
#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 May 1, 2014).
#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 May 1, 2014).
#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 May 1, 2014). 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) [« SAS »]
#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.”
#Guidelines for the Development of Resident or Family Councils, a Community Care. Ministry of Health. January 2011. Online : http://www2.gov.bc.ca/assets/gov/topic/D3E0B9FAB55484D135A5C5201D799D96/pdf/guidelines_resident__family_councils.pdf (Last accessed May 1, 2014).





  
  





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