Common Care Issues when Living in Residential Care

This chapter examines the wide array of legal matters that arise in the course of living in the care facility. The chapter is divided into two parts; the first deals with common care issues. The second part deals with six increasingly pressing legal issues – medications, control over visitors, abuse and neglect, resident harms, reporting responsibilities, and restraints.

An Important Starting Point

Although unlike some jurisdictions, British Columbia does not have explicit statement in its laws to this effect, a care facility is the resident’s home. It is a home where a person lives along side others in order to receive care and services for their complex needs. The fact this is their home has important implications for how people should look at and respond to issues that arise within the facility.

Care Plans

A care plan is a blueprint to the personal, health and social wellbeing of the resident’s care while at that facility. It sets out in part what needs to be provided, why and how. Its importance is recognized in the Residents’ Bill of Rights which emphasizes the responsibility of the Operator to develop a care plan:

(a) Specifically for the resident, and

(b) On the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.(1)

The residential care regulations set out several areas that are expected to be part of the resident’s care plan. These include separate plans to address: any medication needs; any behavioural intervention; oral health care; nutrition (including therapeutic diets); recreation and leisure; fall prevention, if prone to falls; elopement risk (a plan to prevent the person in care from leaving, and plan to locate the person if missing), plus any written agreement on the use of restraints.(2)Very importantly, the care and supervision provided for the resident is also required to be consistent with the terms and conditions of the care plan.

For people who are “involuntary patients” and have moved to residential care facility on “extended leave “ under the Mental Health Act (“MHA”) , the care plan also needs to address any condition or requirement under the MHA associated with the person’s admission to the care facility.(3)

The residential care regulations clearly emphasize the importance of the resident and representative participating with the facility staff in the care plan, not only at the first instance, but also as it is reviewed and modified.(4) These care plans are required to be regularly monitored to ensure they are being properly implemented.(5)

The formal care plan must be reviewed whenever there is a substantial change in the resident’s circumstances. At a minimum, the plan must be formally reviewed at least once a year.(6) Some handbooks for residents and families may mention the “once a year review”, but may gloss over the ongoing responsibility of the care facility staff to monitor and review care plans with the resident and family.

“Substantial change in circumstances” can include a variety of matters, such as unexpected change in physical health, behaviour, or cognition; when care operators are considering adding or changing medications, especially psychoactive medications; when there will be a new roommate (if the person is in a double room) etc. This ongoing planning is to ensure the resident’s needs and preferences are met, plus that the plan is compatible with resident’s abilities and wishes.

Many aspects of care plans involve health care. Consequently these require informed consent by the resident; the resident’s legally appointed substitute decisionmaker, or a temporary substitute decision-maker under the Health Care Consent and Care Facility (Admission) Act, if applicable. That means the people need to have the appropriate information about options, risks, and benefits on which to make the needed decisions about how the care plan will be carried out. The existence of a care plan does not remove the responsibility of the Operator and staff to continue to communicate with the resident and others about the person’s physical, emotional and social health to better support the resident.

Who is a “Representative”?

The regulations talk about the resident and the representative participating in the care planning. The term “representative" under the regulations specifically means a person who is a committee (under the Patients Property Act)(7), a representative for personal or health care under the Representation Agreement Act(8), or the person who would be the resident’s temporary substitute decisionmaker under the Health Care (Consent) and Care Facility Admission Act.(9)

Does that mean that others such as a close friend are excluded from care planning? No, both in law and good health care practice, it is recognized this narrow interpretation would defeat the purpose of developing a care plan for some residents. A mentally capable person always has the right to choose who would be part of his or her support network. That could include anyone that the resident wants to have involved. The threshold for mental capacity for decision-making in this context (“who do I want to help me” or “who I don’t want involved”) is likely very easy to meet.

Many residents today cannot effectively “participate“ in their care planning in the facility without the additional support of others who know and understand this person well, to help express their values, wishes and preferences, as well as to help staff understand their behaviours and responses. Committees, representatives, and temporary substitute decisionmakers are simply three groups of people with specific legal authority to make health care and personal decisions with or on behalf of the older adult.

Communication

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Proper and timely communication with residents and family or other representatives is a legal responsibility on all care facility operators. The Patient Care Quality Offices in British Columbia indicate that poor communication is a common problem across the health care system, including residential care.(10) In a care facility, family and friends can become frustrated when they do not know who to talk to in the facility, are simply told “it’s the policy “, or where they feel that problems or concerns are not being effectively addressed (or in a timely manner as required by law).(11) Poor communication ranges from simple time pressures and inadvertent oversights to blatant efforts to conceal information, particularly about the circumstances of a resident’s injury or death.(12)

Noteworthy: Written Policies

The Residential Care Regulations require the operator to have written policies to guide staff in all matters relating to the care and supervision of persons in care (13)and to make these available to the resident, or the resident’s representative, upon request. (14)Whenever, staff or administration talk with a resident, family member or other support person about a policy, they should always be able to show the resident or representative what the written policy says. At a minimum, that can help identify people if it applies to the matter in question and what it says in the circumstances. That will not automatically mean the policy adheres to the law or is fair, but it can give all parties a starting point for discussions on matters such as caring and supervision.

Poor communication may indicate an environment in which respect for residents’ rights is not being given sufficient priority. (15)Residential care operators often become familiar with abuse or neglect issues because the regulations focus on these matters. Residents and families find that rights violations, in contrast often receive less concern and a lesser sense of urgency.(16)

Family may experience considerable frustration when they have been dealing with a long-standing problem, then hear an operator or representative from the local health authority state that “this is the first we have heard of the problem. “Lack of time, inadequate problem solving skills, poor internal communication lines, lack of appropriately trained staff and inadequate dispute resolution processes can exacerbate common communication gaps in residential care. This eventually leads some family or friends to feel any effort is futile. In other cases, they begin responding in a negative manner, with situations becoming increasingly confrontational and adversarial. If situations deteriorate, even the skills commonly promoted as good advocacy (e.g. good note taking about the “who, what, when and where” of concerns, tape recordings can become perceived by the operator or authority as a sign this family member or representative is “trouble”).

The regulations specifically require that there is always a “charge person” designated if the Manager is temporarily absent. (17) The regulations also require the Operator to keep a record of complaints made and concerns expressed, keeping these records for at least two years. (18)This section does not limit it to written complaints; verbal complaints should be noted. The Operator is also required to produce the record to Licensing on demand. (19)

Poor communication issues may not be limited to matters being raised internally in the care facility. Family members and others raising concerns frequently learn they have been given incorrect information by bodies such as a Patient Care Quality Office (for example, being told they must bring the issue to a particular health profession first).

Care Conferences

At the time of admission, an initial nursing and medical assessment is completed, and a basic plan of care is formulated with preliminary input from the resident, and family or representative. (20)The operator is required by regulations to have a more detailed care plan for any resident who will live there longer than 30 days.(21)

Care Plans are Mandatory

Residential Care Regulations, s. 81 (1): If a person in care is admitted to the community careIf a person in care is admitted to the community care facility for a period of more than 30 days, a licensee must ensure that a care plan for the person in care is made in accordance with this section within 30 days of admission.

An initial care conference is held once the resident has been living in the facility about 6-8 weeks. The care conference is integral to the resident’s care plan. The goals of the initial care conference are:

• for key staff to get to know the resident and family better (and for them to do the same with staff)
• to gather information about the resident’s lifestyle, likes, and dislikes that can be incorporated into the care planning process,
• to ensure staff and administration understand resident’s needs appropriately plus
• to answer any questions or concerns.

Family or any other key contact person is normally sent a letter in advance to inform them about the date and time of the conference. It is unclear whether they have any input on the timing. Subsequent care conferences help to review and modify the plan, as needed.

Some facility staff as well as facility information books may leave family or residents with the impression after the initial care conference that the operator’s only responsibility to the resident and family is to hold an annual care conference. This is not accurate. A care conference is required whenever there is a change in the resident’s condition, and if there is no change, at least once a year. (22) The year review is simply a statutory minimum for all residents and all residents care facilities.

Residents and families report that some care conference are carried out in a way that does not facilitate open communication or planning. Even new guidelines for operators on holding care conferences can leave the impression this is largely one way communication- “what we plan to do”. (23) As a result, residents and other people can feel they have little input into the actual “planning” process. It is not appropriate to say that residents or their representatives have accepted or consented to a care plan, if they do not feel there are reasonable options and they are expected to simply accept what has been presented.

Continuing accommodation of needs

Section 50 of the Residential Care Regulations sets out the requirement of “continuing accommodation.” This involves the staff regularly monitoring the individual resident’s health. As the resident’s health condition or other needs change, the staff and Operator are expected to make ongoing adjustments to the care being offered and provided.

The regulations also state the operator cannot send the resident to hospital unless there is an emergency, or directed by person’s medical practitioner or nurse practitioner. (24)The operator cannot transfer the resident to another community care facility without the consent of the person in care or that person's representative. (25)Basically the resident cannot be “dumped” somewhere else, simply because the resident’s health care needs change.

Staffing

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One of the common concerns expressed by family relate to the staffing level within the facility and in some cases, the training of the staff to deliver complex care. Many care facilities in British Columbia have a large proportion of part-time and casual staff. (26)Moreover, some operators contract out their care support and other services to other companies. The result is that residents may not have the same staff to regularly provide care.

What is the legal requirement?

Several years ago, Ministry of Health set a guideline of 3.36 hours of direct care for each resident. However, this guideline has not been met by the health authorities.(27)

In law, there is no minimum staffing level or specific staffing mix required within the provincial legislation for residential care facilities. However, the regulations mandate the operator to have sufficient employees on duty at all times to (a) meet the needs of the persons in care, and (b) assist persons in care with activities of daily living, including eating, mobility, dressing, grooming, bathing and personal hygiene, in a manner consistent with the health, safety and dignity of persons in care. (28)

This has typically given the Operator considerable discretion in the staffing. In general, the level of staffing has tended to be higher in not-for-profit facilities compared to for-profit facilities.(29) The regulations place the emphasis not just on numbers of people on duty, but sufficient “in numbers, training and experience, and organized in an appropriate staffing pattern”.(30) The law also places a duty on the Operator to also ensure that the available must be able to communicate effectively with all of the persons in care.(31)

Without adequate and appropriate staff, it becomes easier for residents’ needs to be overlooked or neglected, for staff to rush residents at meals increasing choking risk, (32)or for health conditions such as pressure ulcers (bed sores) to go undetected or inadequately addressed. If a resident wanders from the facility or experiences a personal injury, a pattern of inadequate staffing may be indicative of negligence on the part of the Operator and administration.

Providing good care can become further complicated when an operator decides to contract out or change employment agencies, typically to reduce wage and benefit costs. This can cause a large displacement of staff in the facility, and in some parts of the province, the practice occurs on a fairly common basis.

Under the care regulations, the Medical Health Officer (Licensing) must be informed by the operator of any substantial changes in operation. (33) However at present, there is no specific requirement to inform Licensing of these fundamental staffing changes. The Ombudsperson’s Best of Care report specifically recommended that these types of large scale staff changes be part of the definition of "substantial changes in operation”. (34)To date, there has not been a response from the Ministry on this recommendation.

Quality of Care

Residential care raises many questions for people about the quality of care being given to residents. Media’s attention primarily on care quality or other problems that may arise in residential care facilities tends to reinforce the concern many older people and families have about living in a residential care facility.

Many people would probably define quality care as receiving the best care possible for one’s condition at this particular point in life. Quality of care covers the entire experience of receiving care and support in the facility, including respectful treatment and delivery of care by operators. It can range from attitude and tone of voice, to the technical aspects of care, to avoiding errors or mistakes, to receiving clear answers to questions and much more.

For the individual, quality of care may be shown in a wide range of efforts to

• prevent health care or other problems from arising (such as pressure ulcers (bedsores), resident to resident conflict),
• recognize the condition or situation if it does develop, and
• promptly and appropriately treat the condition or respond to the situation if it arises.

Continence Care

The term “continence care” refers to helping individuals with their bladder or bowel functions, either to maintain independence or deal with incontinence. Older adults living in residential care facilities often have balance or mobility problems, which means that they may need help to safely move to the bathroom, or to transfer from a wheelchair to a toilet and back. Continence care may include helping to improve or maintain the person’s mobility generally. It generally means assessing the person’s current abilities in self care and planning how to improve that if possible. It may include care plans to help the person to the bathroom, if needed, good hydration and efforts to keep the bladder healthy so the person does not develop urinary tract infection (which in many cases can lead to delirium), as well as proper incontinence care and skin care if the person becomes incontinent.

Residents and families often identify several common problems around continence care:

• residents who were continent before admission to the facility lose the ability because there are not enough direct care staff available to help them to the bathroom;
• non response to call buttons, resulting in residents trying to access the washroom on their own, risking falls and injury;
• residents left waiting long periods of time to be helped from the toilet;
• the misuse of continence products (limiting number of pads or briefs, limiting when the resident can be “changed” [“the 75% rule”], or doubling the pads to reduce number of changes);(35)
• restricting fluids for a resident to reduce the use of continence products;
• financial aspects, such as being charged fees for catheters and continence products (these are actually an included benefit in the assessed client rate for residential care. (36)

Is there a legal “right to good continence care”?

Good continence care is part of the broader responsibility of the Operator to provide good care and meet the individual resident’s care needs. Legal analysis on continence issues in residential care has underscored a number of policies and practices that clearly violate the concepts of individualized care and personal dignity. For example, it is not appropriate for an operator to allow only a certain numbers of continence briefs per resident, per shift, or per staff, (37) nor is it appropriate to put front line staff in the position where they are, in effect, told to ration these supplies and care necessities.

In British Columbia, individual health authority practices vary when it comes to continence care. Interior Health, for example, has a short policy that is focused on maintaining maximum independence for residents by providing assistance when needed. Vancouver Coastal Health has a policy on “bowel function promotion and maintenance.” The other health authorities do not have specific policies on providing bathroom assistance.(38)

Interestingly, sometimes information from health authorities can add to the public confusion on continence care issues. For example, guidebooks may ask people to check if the facility has additional charges for incontinence pads.(39) This leaves the public with the impression that residents can legitimately be charged for these, when they are actually part of the basic cost.

Risk Taking

One commonly asked legal issue in residential care is: “Which personal risks are residents ‘permitted’ to take?” The issue revolves not only about the perceived risks for the individual (or sometimes other residents), but also is about the efforts taken to mitigate risks and who has the final say in the various “risk” decisions.

An example from falls prevention

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Falls are a common concern in residential care facilities, and happen with considerable frequency, as a result of many interrelated factors including frailty, medications, staffing and environmental factors,(40) as well as cognitive impairment. In some cases, family will ask (“strongly request”) staff to take stronger efforts to help reduce the risk of a resident falling. They may erroneously believe that if staff restricts the resident’s movement (“make her stay in bed”) or if they use physical restraints, this will prevent falls.

Research clearly and consistently indicates that physical restraints do not increase safety.(41) In some types of cases, physical restraint use actually leads to a higher risk of falls.(42) Even the litigious American system has recognized that a facility is much more likely to be held liable in a lawsuit for an injurious fall where proper falls risk assessment and proper falls management were not done, than if the facility was not using physical restraints. (43)From a legal perspective, restraints do not reduce liability.

By law, the operator is required to undertake a falls risk assessment for each resident and develop a falls management plan for those at risk, record it and regularly review it. However, operators have an overall responsibility to provide good information for people who are making decisions with or on behalf of the resident. As part of this responsibility, operators may need to help families and others

• develop a better understanding of the issues (e.g. the resident’s risk to take certain risks, the harms from the restriction), as well as
• the best practices in the area (e.g. ways that the facility works to reduce risks of falls through environmental means, through rehabilitation and mobility preservation).

Leaving the facility

In some residential care facilities, competent residents may be denied the right to leave the facility to visit a nearby coffee shop, or the operator may require that the person only leave with a staff person, family or a companion. If those people are not available, the resident is effectively restricted to the facility. The facility may adopt the policy from a risk management perspective including out of concern for the safety of residents, taking into consideration local traffic, vision or hearing impairment, fall risks, and environmental hazards. Nevertheless it can be a violation of a competent adult’s autonomy.(44) At law, it may be considered forcible confinement, and may be a criminal offence.(45)

When the resident has been transferred to the facility under the extended leave provisions of the Mental Health Act, the issue of leaving the facility also becomes problematic. The person may be mentally capable of making that kind of decisions, but may be restricted from leaving because the Mental Health Act takes away all the person’s decision-making rights.

Private Communication

Because care facilities are relatively “closed systems”, separated from the broader community, the opportunity for residents to remain in contact with family, friends and other people on the outside is very important. The Regulations require the Operator to have at least one conveniently located private line telephone, for use only by residents. The phone must have “adaptations, as necessary, to meet the needs of persons in care”, and be accessible to residents at all times.”(46)

Paid Companions in Residential Care

Family members or friends may wish to hire a paid companion to supplement time spent with the resident. Companions may be hired under the direction of family or friends or a home care agency to provide companionship for individual residents. This is a private arrangement between the family/resident and the companion. In some care facilities, families feel pressured to hire from an agency with whom the Operator is doing business.

Companion services are primarily social in nature and may include: conversation, reading, card/letter writing, music, recording life stories, shopping, games, and attending appointments. Typically the care facility operator does not assume liability or responsibility for these arrangements. They may request the companion to sign a waiver “to provide clarity regarding the services provided”.

Renovations and Closure of Facilities

Throughout the 2000s, a number of care facilities in British Columbia were closed or renovated. In many circumstances, this process happened in a way that left residents and families with little if any notice, distressed and feeling very uncertain about the residents’ future. The Residential Care Regulations require the Medical Health Officer to be informed about closures, but is silent as to residents or families to this information.(47) The Ombudsperson’s Best of Care report recommended that health authorities promptly inform residents and families decisions about closure decisions.(48)

The Ministry of Health (Home and Community Care) Policy now has a special section on expectations of Operators and the health authorities when Operators or others are planning to close the facility.(49) At least one health authority has identified that care facilities under a certain size (125 beds) are not economically viable, and consequently should be closed. (50)This will be a very important consideration for current and future residents.

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

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."

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."

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."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

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."

(1) In contract law, the inability to complete or fulfill a contract, whether intentional or unintentional, or (2) the intentional interference with a person's rights under a contract or court order. (3) In family law, the motivation behind an application for annulment based on non-consummation of the marriage. A contract that cannot be completed or fulfilled is said to be "frustrated."

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

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."

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.

In property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

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

In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See "act" and "common law."

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.

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

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."

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."

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 law, an order of a court cancelling or changing an earlier order of the court. See "order."

In family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support."

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, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."