The Basic Recourse Process under CCALA - Revision history

Charmaine Spencer: /* Threats of Being Sued */

2016-01-11T22:51:26Z

Threats of Being Sued

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	Identifying and addressing problems in care facilities is a socially important matter that needs to be dealt with fairly and in a responsive manner. On rare occasion, a British Columbia operator has initiated a defamation lawsuit against a third party who has publicly identified problems in a residential care facility, on the basis that the comments damaged the business’s reputation. When this occurred in another Canadian jurisdiction the operator’s lawsuit was not successful; the court considered it in the public interest to raise these issues. ([[{{PAGENAME}}#References\|31]])		Identifying and addressing problems in care facilities is a socially important matter that needs to be dealt with fairly and in a responsive manner. On rare occasion, a British Columbia operator has initiated a defamation lawsuit against a third party who has publicly identified problems in a residential care facility, on the basis that the comments damaged the business’s reputation. When this occurred in another Canadian jurisdiction the operator’s lawsuit was not successful; the court considered it in the public interest to raise these issues. ([[{{PAGENAME}}#References\|31]])

	In some instances, a lawsuit may have been initiated to purposefully create a chilling effect so that people will not complain about the quality of care that residents receive. At common law, there are important defences for operators, staff and residents to be aware of in this area, including the truth ("justification"), “qualified privilege”, “fair comment”, and “responsible communication on matters of public interest”. ([[{{PAGENAME}}#References\|32]])		In some instances, a lawsuit may have been initiated to purposefully create a chilling effect so that people will not complain about the quality of care that residents receive. At common law, there are important defences for operators, staff, family and residents to be aware of in this area, including the truth ("justification"), “qualified privilege”, “fair comment”, and “responsible communication on matters of public interest”. ([[{{PAGENAME}}#References\|32]])

	The last of these, responsible communication on matters of public interest, is a new defense identified by the Supreme Court of Canada in 2009. ([[{{PAGENAME}}#References\|33]]) It requires two things: first the published comments must be on a matter of public interest (comments about quality of care in a facility, abuse, or neglect would be good examples). Second, the defendant must show that publisher was responsibly diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.		The last of these, responsible communication on matters of public interest, is a new defense identified by the Supreme Court of Canada in 2009. ([[{{PAGENAME}}#References\|33]]) It requires two things: first the published comments must be on a matter of public interest (comments about quality of care in a facility, abuse, or neglect would be good examples). Second, the defendant must show that publisher was responsibly diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

	==References==		==References==
	#RCR Regulations, s. 60.		#RCR Regulations, s. 60.

Charmaine Spencer: /* References */

2016-01-11T22:50:09Z

References

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	#CCALA. s. 22 (3) and Regulations,		#CCALA. s. 22 (3) and Regulations,
	#Human Rights Code [RSBC 1996] c. 210, s.43.		#Human Rights Code [RSBC 1996] c. 210, s.43.
	#RCR Regulations, s. 48 (b)		#RCR Regulations, s. 48 (b).
	#RCR Regulations, s. 89.		#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”).		#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.		#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		#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.		#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 (b).
	#RCR Regulations, S. 60 (c)		#RCR Regulations, S. 60 (c).
	#CCALA, s. 22		#CCALA, s. 22.
	#CCALA , s. 22 (3) - must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service		#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”]		#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 at this stage of dementia, 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.		#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)		#RCR, s. 60 (b).
	#CCALA, s. 22 (3)- must not alter, interrupt, or discontinue service		#CCALA, s. 22 (3)- must not alter, interrupt, or discontinue service
	#AGA, s. 46 (1)		#AGA, s. 46 (1).
	#AGA, s. 46 (4) (b)		#AGA, s. 46(4)(b.
	#AGA, s. 46 (4)		#AGA, s. 46 (4).
	#AGA, s. 46 (4) (d)		#AGA, s. 46 (4)(d).
	#CCALA, s. 22 (1)		#CCALA, s. 22 (1).
	#CCALA, s. 22 (2)		#CCALA, s. 22 (2)
	#AGA, s. 46 (1)		#AGA, s. 46 (1).
	#AGA, s. 46 ( a), (c) and (d).		#AGA, s. 46 (a), (c) and (d).
	#AGA, s. 46 (4) (d)		#AGA, s. 46 (4)(d).
	#CCALA, s. 22 (1)		#CCALA, s. 22 (1).
	#AGA, s. 46 (1)		#AGA, s. 46 (1).
	#AGA, s. 46 (4)		#AGA, s. 46 (4).
	#AGA, s. 46 (4) (d)		#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.		#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~~)		#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 January 9, 2016)
	#Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640		#Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640

	{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}		{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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Nate Russell: /* References */

2014-07-24T23:24:21Z

References

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	#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)		#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		#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.~~

	{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}		{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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Nate Russell: Undo revision 22374 by Nate Russell (talk)

2014-07-24T23:22:31Z

Undo revision 22374 by Nate Russell (talk)

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 #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.
 {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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Nate Russell: /* References */

2014-07-24T23:21:14Z

References

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 ##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
 {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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Nate Russell at 23:19, 24 July 2014

2014-07-24T23:19:55Z

Show changes

Nate Russell at 18:12, 24 July 2014

2014-07-24T18:12:17Z

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

	===“Complaint”===		===“Complaint”===

Admin at 15:51, 18 July 2014

2014-07-18T15:51:06Z

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Admin: /* Concerns About Raising Concerns */

2014-07-09T18:36:59Z

Concerns About Raising Concerns

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	Family members and friends are often concerned about the potential for adverse consequences for the resident when they are not there, as well as for themselves (such as restrictions on visiting). ([[Chapter Five Legal Issues in Residential Care References\|14]])Volunteers are there at the largesse of administration. Staff may be concerned about risking their job, including ending up with reduced hours or less favourable shifts, especially if they are casual and part-time workers. Sometimes people’s reactions simply reflect fear of the unknown. In other instances, these are reasonable responses to previous situations that may not have been handled well in this care facility or others.		Family members and friends are often concerned about the potential for adverse consequences for the resident when they are not there, as well as for themselves (such as restrictions on visiting). ([[Chapter Five Legal Issues in Residential Care References\|14]])Volunteers are there at the largesse of administration. Staff may be concerned about risking their job, including ending up with reduced hours or less favourable shifts, especially if they are casual and part-time workers. Sometimes people’s reactions simply reflect fear of the unknown. In other instances, these are reasonable responses to previous situations that may not have been handled well in this care facility or others.


			[[File:Report it.jpg \| right \| frame \| link=\| <span style="font-size:60%;">Copyright www.shutterstock.com</span>]]

	==Reporting Protections==		==Reporting Protections==

Marisa Chandler: /* Special Note: Who’s protected and when? */

2014-07-08T19:35:42Z

Special Note: Who’s protected and when?

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	The CCALA, for example, offers residents specific protection against retaliation and adverse consequences. The Operator must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a resident, where a person has made a report or has expressed an intention to do so. ([[Chapter Five Legal Issues in Residential Care References\|17]])The Operator or any other person cannot act in a way that negatively affects service to resident as a result of an abuse report or intention to make the report. ([[Chapter Five Legal Issues in Residential Care References\|18]])Staff and other people also have certain protections if “abuse” reports are made in good faith.		The CCALA, for example, offers residents specific protection against retaliation and adverse consequences. The Operator must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a resident, where a person has made a report or has expressed an intention to do so. ([[Chapter Five Legal Issues in Residential Care References\|17]])The Operator or any other person cannot act in a way that negatively affects service to resident as a result of an abuse report or intention to make the report. ([[Chapter Five Legal Issues in Residential Care References\|18]])Staff and other people also have certain protections if “abuse” reports are made in good faith.

	====Special Note: Who’s protected and when?~~====~~		{\| class="wikitable"
			\|- valign=top
			\| width="100%" \|'''Special Note: Who’s protected and when?'''

	It can be challenging at times to understand the scope of existing reporting protections, leading to the question, “So who is protected and when?” The Residential Care Regulations definitions are specifically framed in the context of “reportable incidents”. This leaves the possibility that residents, families and staff may not be protected from adverse consequences when raising concerns that do not fall in this narrow framework.		\|- valign=top
			\| width="100%" \| It can be challenging at times to understand the scope of existing reporting protections, leading to the question, “So who is protected and when?” The Residential Care Regulations definitions are specifically framed in the context of “reportable incidents”. This leaves the possibility that residents, families and staff may not be protected from adverse consequences when raising concerns that do not fall in this narrow framework.

			\|}

	The abuse reporting protections of the Adult Guardianship Act(AGA) apply to all settings including residential care, although the AGA has not traditionally been used in this setting. ([[Chapter Five Legal Issues in Residential Care References\|19]])The AGA safeguards protect the identity of all good faith reporters. Section 46 (4) of the AGA offers certain employment and professional protections for people who report in suspected abuse or neglect of vulnerable adults made in good faith to a “designated agency” (generally health units in the community).([[Chapter Five Legal Issues in Residential Care References\|20]]) Residents and other people are protected against intimidation and coercion when an abuse report has been made in these circumstances. See Figure 1.		The abuse reporting protections of the Adult Guardianship Act(AGA) apply to all settings including residential care, although the AGA has not traditionally been used in this setting. ([[Chapter Five Legal Issues in Residential Care References\|19]])The AGA safeguards protect the identity of all good faith reporters. Section 46 (4) of the AGA offers certain employment and professional protections for people who report in suspected abuse or neglect of vulnerable adults made in good faith to a “designated agency” (generally health units in the community).([[Chapter Five Legal Issues in Residential Care References\|20]]) Residents and other people are protected against intimidation and coercion when an abuse report has been made in these circumstances. See Figure 1.