The Basic Recourse Process under CCALA: Difference between revisions
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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. | ||
#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 | #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 | #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 | #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 | #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}} | ||
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | {{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | ||
Latest revision as of 22:51, 11 January 2016
“Complaint”[edit]
- “Is an expression of dissatisfaction when an expectation is not met. Although it may appear trivial from a health organization’s perspective, it is a very real problem to the complainant and should be taken seriously. Complaining is a patient/resident/ client/customer’s right and the health care organization has the responsibility to inform its customers how to complain”.
- - Health Association of B.C.
As part of the overall responsibility to assure and support the well-being of residents (“a person in care”), the operators of facilities licensed under the Community Care and Assisted Living Act (CCALA or “the Act”) and Residential Care Regulation are required to establish “fair, prompt and effective” processes for resolving complaints and disputes. (1) The Act also requires operators to ensure that the resident is not subject to retaliation as a result of anyone expressing a concern (“making a report”). (2)Other Acts such as the Human Rights Code offer similar non-retaliation or protection safeguards. (3)
| Residential care regulations |
| Dispute resolution
60 A licensee must:
|
The Regulations require operators to inform residents and their representatives on admission about facility’s complaints process and how they can complain to the local health authority’s Medical Health Officer (Licensing) and the Patient Care Quality Office. (4) Operators are also required to record any complaints they receive, plus document how they responded to them. (5)
Operators may identify the complaint process in the admission agreement and may specify how the person is expected to raise concerns. Some operators may have an “internal ombudsperson” so that concerns can be directed to one person who will be responsible for follow-up. It is important to note the law does not require the resident or other person to use a step by step (“start internally and escalate if necessary”) process. Although this might commonly be advisable, there may be good reasons why a resident or other person might not do that. For example, the operator or people responsible for the internal complaint mechanism may be part of the problem, previous efforts may have gone unaddressed, or the effort has otherwise been shown to be futile.
Under Community Care and Assisted Living Act and the Regulations, operators are allowed to determine what their own complaints processes will be, as long as they meet the test of being “fair, prompt and effective.”(6) While this offers flexibility, this can result in wide variations in the complaints processes among the facilities across the province. As a result, the BC Ombudsperson recommended the Ministry of Health take a more standardized (“specific, legalized”) approach with timeframes and records. (7) While on its face a laudable goal, there may be numerous challenges with a standardized approach. (8)
Concerns About Raising Concerns[edit]
Identifying issues and concerns in a care facility and having them addressed in an appropriate, timely, and effective manner is essential to the respecting the rights and dignity of residents, as well as assuring their wellbeing. It can help prevent crises, or recurrence of issues. However, it is very commonplace for residents, as well as family, friends, or others including staff to be very cautious about bringing facility related concerns to the attention of persons who may be able to resolve the issues.
Why the apprehension?[edit]
Residential care can be a relatively socially isolated environment. Residents often have small social networks before coming into residential care and may lose their remaining ties with family, friends and rest of the community. This happens for many reasons, including having to leave their friends and community because of “first appropriate bed” policies. Many residents recognize that they are very dependent on staff and others for care, and are often cautious about expressing anything that might be viewed as “rocking the boat”. Other residents may not have the physical capacity or mental capacity to identify problems or report their concerns.
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). (9)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.
Reporting Protections[edit]
Who is protected and when?[edit]
The CCALA and its accompanying Regulations recognize these realities and offer some protections. In addition to requiring the operator have a fair, prompt and effective process for expressing and addressing concerns, the Regulations specifically note that, the operator must ensure that there is no retaliation against a resident (“person in care”) as a result of any person expressing a concern or making a complaint. (10) All complaints, concerns and disputes are expected to be responded to promptly. (11) That places a positive duty on the Operator to address problems and concerns promptly. Both CCALA and the Adult Guardianship Act offer reporting protections to the resident, staff and others, but to different degrees. See Figure 1 for a summary.
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. (12)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. (13)Staff and other people also have certain protections if “abuse” reports are made in good faith.
| 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. |
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. (14)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).(15) Residents and other people are protected against intimidation and coercion when an abuse report has been made in these circumstances. See Figure 1.
Figure 1 Reporting Protections[edit]
| Residential Care regulations | Community Care and Assisted Living Act | Adult Guardianship Act
| |
| Residents are protected against | Retaliation (16)(irrespective of who raises the concern). Non specific | Retaliation – licensee or other person cannot negatively affect service to a resident, as a result of an abuse report, or intention to make a report (17) |
|
| Staff are protected against | (see CCALA) |
| |
| Others are protected against | (see CCALA) | No action or other proceeding the report is made in good faith (27) |
Are these protections limited to abuse reports?[edit]
On its face, these protections appear to only cover “abuse” reports. However, the definitions for abuse and neglect, especially the definition of “neglect” in Schedule D of the Residential Care Regulations, are fairly broad to reasonably include reports being made about many quality of care matters affecting residents.
Figure 2[edit]
| Types of Harm | Residential Care (Definition used for “Reportable incidents”) | Adult Guardianship
|
| Abuse | Abuse is not specifically defined, see details for the various types | General defn: "abuse" means the deliberate mistreatment of an adult that causes the adult
and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication,
|
| Neglect | "neglect" means the failure of a care provider to meet the needs of a person in care, including food, shelter, care or supervision |
|
| Physical Abuse | "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 |
|
| Sexual abuse | "sexual abuse" means any sexual behaviour directed towards a person in care and includes
any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, | |
| Emotional abuse | “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 | |
| Financial abuse | "financial abuse" means
|
Threats of Being Sued[edit]
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. (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, 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”. (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. (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[edit]
- 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 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.
- 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 January 9, 2016)
- Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014. |