Legal Frameworks of Residential Care

The Statutory Framework for Care Staff

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Most of the staff members who provide direct care in residential care facilities are care aides/ health care attendants, licensed practical nurses or registered nurses. They gain their experience through formal training and work experience. Care aides have the least formal training in the health care system and registered nurses have the most.(1)

Almost all direct care is delivered by the residential care aides, who may be supervised by a licensed practical nurse.

RCAs employed in any residential care facility that directly or indirectly receives public funds are required to register with the BC Care Aide & Community Health Worker Registry.(2) The RCAs working at facilities in the private and not-for-profit sectors are encouraged to register as well, especially for those planning to work in the public sector in the future. The Ministry of Health is looking to expand the Registry to cover private care facilities in the future.3) Employers register to access the registry information on care aides.

The Registry system is described in more detail in Chapter Four “Legal Issues When Living in Care Facilities” and Chapter Five “Rights, Remedies and Problem Resolution”. Registered care aides can be “de-registered” and lose their right to work in any public health care setting in British Columbia if they are found to have abused or neglected residents.(4) The definitions of abuse relied on are those in the Adult Guardianship Act, Part 3. Currently there is no provision for addressing issues that relate to the overall competency of the worker (for example, poor quality care or”fitness to practice”). At present, the registry system itself does not come under any specific law. However, investigations of abuse are subject to principles of natural justice.

Licensed Practical Nurses and Registered Nurses both come under the Health Professions Act(5). Their respective regulatory bodies or associations provide oversight and discipline where required. Registered nurses for example, must be registered with the College of Registered Nurses of British Columbia.(6)

Existing and prospective staff, as well as volunteers and students working residential care facilities are required to undergo initial and follow up criminal records checks as required by the Criminal Records Review Act.(7)

The General Statutory Framework in Residential Care

British Columbia has two different legal frameworks to govern the care of residents and the responsibilities of care facility operators. The first of these relates to “residential care facilities” and the second covers private hospitals and extended care units of hospitals.

In 2011, the BC Ombudsperson determined that the two separate legislative frameworks for residential care resulted in unfair differences in the care and services that seniors receive, as well as the fees they pay. The Ombudsperson recommended that the Ministry of Health harmonize the residential care regulatory framework.(8) In the alternative, the Ombudsperson recommended that if the government chose to continue to maintain the two regulatory regimes, it should ensure that residents in the Hospital Act facilities are protected by the same standards afforded under the Residential Care Regulation, and that the Hospital Act facilities are subject to the same active oversight and inspection requirements.(9) That has not happened yet.

Residential Care Facilities come under the Community Care Facilities Act

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• Community Care and Assisted Living Act (10) This Act and its related Residential Care Regulation (11) govern approximately 70 per cent of residential care facility beds in British Columbia. Together they set the mandatory minimum health and safety standards in these facilities, as well as the requirements for staffing, food service, medication administration and other matters.(12)

• Residential Care Regulation [RCR] many of the details of the RCR will be set out in the following chapters. Under this regulation, the people who live in the residential care facilities are referred to as “persons in care”. In everyday practice, they are referred to as “residents”.

In general, this set of regulations establishes the minimum standards of the care facility, the requirements for staffing13), admissions,(14) care (15) and care plans (16), nutrition,(17) medication,(18) the use of restraints,(19) and “reportable incidents”.(20) It requires the operator to have written policies and procedures in place in relation to care and supervision of persons in care,(21) including falls prevention.(22)

The regulations cover communication, access to telephone, and privacy.(23) These regulations also set out the physical requirements for bedrooms, bathrooms, common areas and work areas(24), as well as more detailed specifics such as the temperature of water,(25) and signalling devices. The RCR also sets out records management requirements.(26)

The regulations outline a broad principle intended to guide all residential care. It states the residents’ dignity will be considered when determining care standards.(27) Specific examples are offered in the regulation: operators are required to consider the dignity of the individual when assessing the adequacy of privacy, furniture and equipment in bedrooms and bathrooms.(28) Staffing must also be sufficient for individuals to receive care in a manner consistent with their dignity.(29)However, as the BC Ombudsperson report notes, terms like “dignity” are difficult to measure and how the dignity standard is respected has not been specified.

Under RCR, the Licensees must provide residents, their representatives and family members an opportunity to establish a resident and family council.(30) Under the regulations, employees are required to undergo a criminal record check,(31) and provide character references.(32) The employers are required to check the prospective employee’s work history and proof of relevant training prior to being hired.(33) Facility operators are required to regularly review the performance of staff and ensure that employees do not carry out duties which they are not competent to perform.(34)

The RCR identifies the circumstances in which specific types of “incidents” and health concerns must be recorded in the facility’s internal documentation and when it will need to be reported to external authorities.(35) For example, under the RCR, all medication errors must be recorded.(36) As of December, 2013 incidents of “aggression between persons in care” that cause injury must be recorded by the care facility.(37) There are reporting measures that apply to the use of restraints and occurrences of communicable diseases.(38)

The RCR requires operators take certain safety and identification measures for any cognitively impaired resident who is considered to be at risk of leaving the premises without alerting staff, and of not being able to identify themselves. That might involve placing a bracelet or other secure means of identification on the person. The bracelet must give the name of the person and the community care facility as well as the emergency contact information.(39)

Private Hospitals and Extended Care Facilities come under the Hospital Act

Approximately thirty per cent of British Columbia’s residential care facility beds are in private hospitals and extended care facilities licensed under the Hospital Act. This Act regulates private hospitals and extended care hospitals that provide residential care. At a given point in time approximately 9800 residents needing long term care will live in these settings. These facilities currently have different regulatory standards, fees, monitoring and enforcement processes than the licensed care facilities that come under the Community Care and Assisted Living Act. Private hospitals that provide residential care services are regulated by part 2 of the Hospital Act.(40)

Private hospitals must be licensed in accordance with the Hospital Act. Residential care can also be provided as “extended care” in a hospital setting. In this case, these units or facilities are also subject to the Hospital Act. The definition of hospital in the Hospital Act includes, “a non-profit institution that has been designated as a hospital by the Minister of Health Services and is operated primarily for the reception and treatment of persons requiring extended care at a higher level than that generally provided in a private hospital licensed under Part 2.”(41) Extended care units or hospitals are often either part of a general hospital or near a general hospital.

Unlike the RCR, the Hospital Act does not set out mandatory standards for operators who provide residential care. However that does not mean there are no standards of care or practice to which the staff and administration of private hospitals or extended care units are accountable.

The law requires that the private hospital (or “house” as it is identified in law) has been approved by the provincial chief inspector of hospitals as suitable for the purpose indicated when the operator applied for a license. (42) The Hospital Act also states that a licensed private hospital may be inspected “at any time” by a hospital inspector who is employed by a regional health authority.

It has been recognized that there would be significant advantages to having the three types of facilities (residential care, extended care units and private hospitals) come under a common set of standards, inspection and monitoring structure. However, a number of implications related to funding, property tax, capitalization, and user fees would arise. (43)

As mentioned, the Ombudsperson ‘s report has stated that if the government chooses to continue to maintain the two regulatory regimes, it should ensure that residents in Hospital Act facilities are protected by the same standards afforded under the Residential Care Regulation, and that Hospital Act facilities are subject to the same active oversight and inspection requirements.(44)

Differences between the two frameworks

In general, the standards and oversight mechanisms that apply to facilities licensed under the CCALA are more extensive and rigorous than those that apply to facilities governed by the Hospital Act.(45) The general public, older adults and their families typically do not know under which legislation a particular facility falls. (46) The Act that governs the facility makes a significant difference to the rules, standards and oversight mechanisms which govern the care provided.

Hospital Act

The principal focus of the Hospital Act has been the regulation of public hospitals that provide acute, extended and rehabilitation care. However, the Act has also regulated private hospitals over the past 50 years. According to the definition set out in the Hospital Insurance Act Regulations,(47) the prime function of extended care hospitals is to provide “skilled nursing care and continuing medical supervision.”

References

1. Ombuds, Best of Care, pg. 294.
2. BC Care Aide & Health Worker Registry. Online: http://www.cachwr.bc.ca/Home.aspx (Last accessed January 9, 2016) [“Registry”]
3. Seniors Care HR Sector Committee, pg. 8.
4. Registry. “Removal from the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry/Ensuring-Public-Safety/Removal-from-the-Registry.aspx (Last accessed January 9, 2016).
5. Health Professions Act [RSBC 1996] c. 133.
6. College of Registered Nurses of British Columbia. Online: https://www.crnbc.ca/Pages/Default.aspx (Last accessed January 9, 2016).
7. Criminal Records Review Act [RSBC 1996] c. 86. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96086_01 (Last accessed January 9, 2016).
8. Ombuds, Best of Care, R94, pg. 211.
9. Ombuds, Best of Care, pg. 210.
10. CCALA.
11. RCR.
12. Ombuds, Best of Care, pg. 203.
13. RCR. Part 4, Division 1 (General Staffing Requirements) and Division 2 (Coverage and Necessary Staff), s. 37-46.
14. RCR, Part 5, Division 1, s. 46-50.
15. RCR, Division 2, s. 51-61.
16. RCR, s. 82.
17. RCR, s. 62-65.
18. RCR s. 68-72.
19. RCR s. 73-75.
20. RCR, Division 6, s. 76-77, and Schedule D of RCR.
21. RCR, s. 85(1).
22. RCR, s.81 (3)(e).
23. RCR, s. 18.
24. RCR, Part 3, Division 1.
25. RCR, s. 17.
26. RCR, s.69(1).
27. For example: RCR s. 7, 21, 25, 26, 29, 30, 42, 47, 53, 57, 73, 78, 93.
28. RCR, s. 21.
29. RCR, s. 42(1).
30. RCR, s. 59.
31. RCR, s. 37(1).
32. RCR, s. 37(1).
33. RCR, s. 37, s.38.
34. RCR, s.40 (1).
35. RCR, s. 77(1).
36. RCR, Schedule D.
37. Order in Council 409, September 26, 2013. See also: Residential Care Regulation and Child Care Licensing Regulation Amendment to Reportable Incidents.
38. RCR, Schedule D.
39. RCR, s. 56 (3).
40. Hospital Act [RSBC 1996] c. 200.
41. Ombuds, Best of Care, pg. 296.
42. This is an official in the Ministry of Health Services.
43. Ombuds, Best of Care, pg. 211.
44. Ombuds, Best of Care, pg. 210.
45. Hospital Act [RSBC 1996] c. 200.
46. B.C. Reg. 25/61[O.C. 315/61] Hospital Insurance Act. Hospital Insurance Act Regulations

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.

In law, a phrase used to indicate secondary relief or a secondary ground of relief in a claim or application, usually presented as an option to the primary relief or primary ground of relief sought. For example, "I'd like to have all of the house but, in the alternative, I'll take half." See “motion," “pleadings," and “relief."

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In contract law, the fulfillment of an obligation or duty arising from a contract.

In law, having the capacity, ability, or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of their evidence. A court that is competent has the authority to deal with the issues in a case and authority over the parties to that case.

In law, (2) a lawsuit, an action, or a cause of action, or (2) the wrongful act of another which gives rise to a claim for relief. See "action" and "cause of action."

(1) In real property law, a piece of property and a building situated on it, usually including the area of the property surrounding a building on that property. (2) In law generally, a premise is an assumption that founds a logical argument. See "argument" and "real property."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Something which can be owned. See "chattels" and "real property."

An act; a statute; a written law made by a government. See "regulations."