Starting Points for Problem Resolution in Residential Care

Residents Rights

Chapter 2 introduced the Residents’ Bill of Rights which can be found in the Schedule to the Residential Care Regulations. The Bill of Rights is typically seen as an important statement of rights that can be used to help inform residents, family and friends, as well as administration, staff and volunteers. It reinforces the fact that people receiving care, as well as their family and friends are not expected to (and do not) “leave their rights at the front door.”

Context of the Bill of Rights

The rationale of the Bill of Rights was to

• clarify and help promote the rights of residents (1)
• “reduce misunderstandings and miscommunications and facilitate consistency of expectations and service delivery”
• assist in the early recognition and resolution of complaints.

The Bill of Rights flows out of Section 7 of the CCALA. This section is a general provision that identifies the standards for the licensee or manager is required to maintain. This includes

• (i) operating the community care facility in a manner that will promote

• • the health, safety and dignity of persons in care, and
  • the rights of adults persons in care, plus

• (ii) employing “only persons of good character who meet the standards for employees specified in the regulations”.

As previously noted, the Bill of Rights is educative (2) and provides context. It can help residents and others know their rights, as well as how to raise concerns and complaints better. It also has considerable potential for helping people approach the diverse issues that may arise in care appropriately, focusing first on the resident (“person-centred”). The Bill of Rights places responsibilities on the facility staff, the operator, and the health authorities to respect and promote the rights. However, while all these identified rights in the Bill of Rights are important, there is a risk that by focusing on these rights, operators, staff, residents, family, advocates or even people providing redress are left with the mistaken impression that other rights which the people have are absent or less important in residential care. (3)

As previously noted in Chapter 2, in British Columbia, the Bill of Rights does not give rise to a separate basis of legal action (that is a person cannot sue for breach of contract or negligence, based solely on a violation of the rights). However, it is an important legal mechanism to interpret and understand the required approach to care and quality of life for residents. It can also provide supporting evidence if an issue needs to go through administrative or other legal channels, including civil lawsuits. (4)

Special Note

The Residents’ Bill of Rights does not give rise to a separate basis for legal action. However, it is an important legal mechanism to interpret and understand the required approach to care and quality of life for residents. It can be evidence of Operators’ and Health Authorities’ duties to residents.

Its Scope

The Bill of Rights in the Residential Care Regulations is a combination of human rights, individual freedoms, consumer rights, care and representation rights, as well as policy expectations. The document covers four domains or themes:

• (a) commitment to care;
• (b) rights to health, safety and dignity;
• (c) rights to participation and freedom of expression; and
• (d) rights to transparency and accountability.

The Bill of Rights identifies that these rights are not passive; they are to be respected, actively protected and promoted by the operator, staff and health authorities. Operators have a responsibility to prominently display the Bill of Rights in a prominent place in the facility so that residents, staff and other people are aware of the rights. (5) The operators also have a responsibility to make the residents’ rights “known, orally and in writing, to persons in care and their families and representatives.”

The term “family “ is not defined in this context. The Bill of Rights, however, is expected to be interpreted in a wide and purposive manner. The term can reasonably be taken to include any person that the resident formally or informally identifies as supportive and acting on their behalf, which may include relatives, extended family, close friends or neighbours. The Residential Care Regulations defines “representative” as those with authority to make health or personal care decision on behalf of the adult under specific pieces of legislation. (6) That may include legally authorized representatives (committee, person appointed under a representation agreement or power of attorney, statutory representatives- temporary substitute decision-maker).

The scope of the rights is set out in the last clause. The listed rights are placed in the context of

• the rights of other residents;
• what is reasonably practical given the resident’s physical, mental and emotional circumstances; and
• the need to protect and promote the resident’s health or safety or that of another resident.

However whenever there is an effort to justify a limiting a particular right, these will need good evidence from the operator to justify that limit or restriction. Bills of Rights are expected to be given broad interpretation that will match their underlying purposes.

The Bill of Rights is not a new idea to long term care. To a large extent, it is a codification and simplified statement of operators’ and staff’s legal responsibilities set out in the residential care regulations, which have been in place for over two decades. While the Ministry of Health has described these rights as “comprehensive”, (7) these are at best a brief statement of only some of the rights held by residents in care facilities.

Residents (along with their families and friends) retain all their rights and entitlements as adults. This includes, for example, common law rights, rights under provincial or federal laws, the Canadian Charter of Rights and Freedoms in respect of government actions, as well as rights from other sources (e.g., duties that are described in medical codes of ethics).

Compliance

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Compliance with the Bill of Rights is monitored in two ways. Patient Care Quality Offices of each health authority (described below) are required to track complaints about non-compliance with the Residents’ Bill of Rights and report this information to the Ministry of Health on a quarterly basis. The community care facilities licensing programs (also described below) within each health authority are required to monitor the facility’s compliance with the rights, typically as part of routine or unscheduled inspection by licensing.(8)

Information rights (The right to know)

The specific provisions of the Bill of Rights are described in detail in Chapter 2. Section 4 of the Bill (rights to transparency and accountability) is particularly germane to remedies and problem resolution. It sets out that residents have a right to ready access to:

• (a) copies of all laws, rules and policies affecting a service provided; (9)

• (b) a copy of the most recent routine inspection record made under the Act. (10)

Section 4 of the Bill of Rights also sets out the consumer rights of residents to know in advance what they will be charged for accommodation and services, and any refund options. (11)It also sets out that residents have a right to have their family or representative informed of all these requirements in order to have greater transparency and better accountability (12) so that people can help residents properly exercise the rights.

The Bill of Rights does not set out how this information is to be provided. It does however mean that residents, their family or representative have the right to expect their requests for information (for example about what has happened, why particular actions are being taken) will be answered in a timely manner by the staff, administration, or the health authority, according to the situation.

Family and Resident Councils

The Bill of Rights and the Residential Care Regulations specifically acknowledge the importance of residents and others having direct means to raise concerns and have these addressed in the care facilities. One of the vehicles for this is resident or family councils.

What is a Family or Resident Council?

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The Ministry of Health uses the following definition for the councils:

“A resident/family council is a group consisting of persons in care and/or their representatives, family members and contact persons who work together with staff to maintain and enhance the quality of life of residents and to provide a voice in decisions within the facility that affect them.” (13)

The membership thus is wider than just those with legal authority to speak for an individual resident. A resident council is a group of persons who live in a residential care facility. A family council is a group of persons who are the contact persons, representative or relatives of care facility residents. Both types of councils meet regularly for a common purpose related to discussing and working to promote residents’ wellbeing, as well as address issues or concerns within the care facility.

Both family councils and resident councils are intended to be self-led, self-determining and democratic. (14) According to the government resources “Councils exist to engage the resident community in collaborative activities which will advance the quality of life for residents.” A staff liaison from the residential care facility may be appointed to support and facilitate the council.

One of the key roles that a family council or a resident council can play is to promote improved communication and collaboration between family members and the facility staff or management. This may involve working collaboratively on projects that enrich the lives of persons in care, making recommendations to decision makers, communicating common concerns and ideas for improvements.

Role, mandate

Resident and family councils provide an opportunity to provide support to staff and management in efforts to provide quality care. If members of the resident family council have concerns or complaints they are expected to work with the” facility representative” to seek a collaborative response to the concern. If the concern or complaint is not resolved by this, the council is expected to follow the steps and processes of the facility including contacting the Facility Operator.

The Ministry of Health appears to suggests that Councils can take a matter of concern to the Patient Care Quality Office (“PCQO”, described below), and if needed to the Patient Care Quality Review Board. This, however, does not represent the reality of the PCQO process.

Strengths and Limitations

Family and Resident Councils face a number of challenges to becoming an effective recourse for addressing concerns within a residential care facility or among facilities. First, few residents or family are there long enough to be involved in a council. A high percentage of the residents may experiencing some degree of cognitive impairment, making participation in residents councils far less likely or less intensive and responsive.

At the same time, there continues to be significant barriers in British Columbia to creating and maintaining family councils. There is a lack of knowledge among families and other supporters of how the health care, residential care and related systems work (“institutional knowledge”). It can take a lengthy period of time (months, even years) for people to understand how their particular facility functions and the potential positive role and function of the councils. It has been noted by council members that just as people begin to gain an understanding of this, “their resident” dies and in most cases, the family member loses contact with people at the facility. The lack of continuity of institutional knowledge can be further weakened where care facility operators try to require that council members who no longer have a resident living there anymore resign and no longer participate. (15)

What is the legal requirement for Family/ Resident Council?

The requirements and support for Family/ Resident Council are not as strong in British Columbia as some other provinces. (16) However, the Residential Care Regulations sets out a number of minimum standards:

1. The operator must provide an opportunity at least once a year to establish a council or similar organization to represent the interests of the persons in care, or their parents or representatives, family members and contact persons, or both.

2. The operator must also meet with the council or group at least once a year to

• (i) promote the collective and individual interests of the persons in care, and
• (ii) involve the persons in care in decision making on matters that affect their day to day living.

Unfortunately some operators may treat these minimum requirements as all they have to do. Others become obstructionist, attempting to impose rules (such as having the Director of Care attend the council meetings) which may make it very difficult for family council members to have open discussions of concerns or to plan how they might like to have these matters addressed.

British Columbia’s law is silent on the specific powers of Family and Resident Councils. However, these examples from other jurisdictions can be useful. Effective Councils can

• Provide assistance, information and advice to families and friends when new residents are admitted to the care facility
• Provide information and advice to families and friends about their rights and obligations under the Act
• Provide information and advice regarding the rights and obligations of the care facility
• Help to resolve disputes between the Care Facility and residents
• Sponsor and plan activities for residents
• Collaborate with community groups and volunteers concerning activities for residents.

Common issues affecting Family and Resident Councils

• Can the Director of Care require that the Director or a staff member attend the Family or Resident Councils meeting? No, the meetings are for the benefit of the residents and those concerned about them. That means people need a place to air concerns openly, safely and in private among themselves. Problems or misconceptions can often be addressed at that level.

• What does the Facility have to do to support a Family Council? The regulations only refer to giving the opportunity to establish a council. This provision must be interpreted in light of its purpose and the Resident’s Bill of Rights. At a minimum, that would mean to have an onsite space to meet in private, regular notices to family and others that the council exists and when it meets, and that it is open to all. This may be part of admission information package, but also needs additional reinforcement and encouragement.

• Who is Family? Can people other than family organize or support a council or similar group? People have widely differing ideas about who or what is family. The term should be interpreted widely. The regulations do recognize the possibility of other groups organizing for the benefit of the resident.

• Timeliness of Response: Even where a Council is able to identify and raise issues with the Operator, there is nothing to require the operator to respond to concerns in a timely manner.

References

1. Office of the Ombudsperson Best of Care Part 1 , pg 28-29.
2. Report on Assisted Living in BC. BCLI Report no. 72, CCEL Report no. 7 September 2013, pg. [“Assisted Living}
3. Assisted Living
4. See Bentley v. Maplewood.
5. CCALA, s. 7 (1) (c) and (c.1) (i) and (ii).
6. Specifically the Health Care (Consent) and Care Facility Admission Act, the Patients Property Act, and the Representation Agreement Act.
7. Ministry of Health. Community Care Facilities . “Residents Bill of Rights”. Online: http://www2.gov.bc.ca/assets/gov/health-safety/home-community-care/accountability/pdf/adultcare_bill_of_rights.pdf [“Bill of Rights”] (Last accessed January 9,2016)
8. Bill of Rights.
9. RCR, s. 4 (a).
10. Bill of Rights , s. 4 (b). Note : A summary of the care facility’s inspection record is also available online.
11. Residents’ Bill of Rights, s. 4 (c ) and (d).
12. Residents’ Bill of Rights, s. 4 (e).
13. Guidelines, p.2
14. 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 January 9, 2016)
15. Ostensibly the reason for not including people whose family are no longer residents at the facility is a fear of “political advocacy”.
16. 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.

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

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."

Sending legal documents to a party at that party's "address for service," usually by mail, fax, or email, called "ordinary service" in proceedings before the Supreme Court. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal 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."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

Acting or not acting in a manner that is contrary to the terms of a contract. In family law, the breach of one party usually gives rise to a cause of action for the other party, allowing that party to sue for breach of contract, but the breach is unlikely to allow that party to treat the agreement as if it were cancelled or had been voided.

Failing to do something that a reasonable person would do, or doing something that a reasonable person would not do, which results in harm to someone else.

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

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

In law, (1) a written argument, or (2) a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

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."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

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."

Short for the Child Support Guidelines, a regulation to the federal Divorce Act, adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.