Difference between revisions of "Other Key Laws and Regulations in Residential Care"

There are several other important pieces of legislation relevant to the rights of seniors in residential care facilities, and the responsibilities of others for the care of seniors.  For example, the Mental Health Act can have important implications for prospective residents who are viewed as mentally incapable.     

The primary statutory requirements for care in care facilities come under the Residential Care Regulations. However, other laws are important to residential care issues, especially in the context of mental capacity issues.

;Adult  Guardianship Act:  This Act sets out the presumption that adults of any age are capable of making decisions about their own personal care, health care and financial affairs.  Part 3 of the Act covers support and assistance to vulnerable adults who may be experiencing abuse and neglect in almost any setting.  

;Mental Health Act:The Mental Health Act is protective legislation designed to ensure the safety and well-being of people with mental illnesses.  It establishes the mechanism by which a “person with a mental disorder” can be involuntarily detained and admitted to a “mental health facility”. The Act has been used to involuntarily admit people who are considered “mentally incapable” of consenting (or refusing to consent) to move into a residential care facility by transferring them from hospitals to care facilities on “extended leave”. This process is described in Chapter Two on Admissions & Transfers. It is generally considered as inappropriate to use the law in this manner.

;Occupational Health and Safety Regulations:  These concern the employer’s obligations regarding a violence prevention program (risk assessment, procedures/policies, instruction of workers) in a workplace, and an employee’s right to refuse unsafe work.

;Power of Attorney Act: This Act enables individuals to draft a power of attorney or an enduring power of attorney so that others may make financial decisions or deal with financial and related legal matters on a person’s behalf. It identifies that mechanism and process of making a power of attorney (including the presumption of capability), and sets out the duties and responsibilities of the person granted the power. The power of attorney is one of the most commonly misunderstood documents in residential care.

In addition, the Public Guardian and Trustee may investigate the personal care and health care decisions made by a representative or guardian, if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties.

;Representation Agreement Act: This Act allows adults to arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently. It is also intended to avoid the need for courts to appoint someone to help an adult make decisions, or someone to make decisions for adults, when they are incapable of making decisions independently.

;Patient Property Act: This Act authorizes people to be certified as mentally incapable in British Columbia. It has been in place since 1979.  Once a certificate has been issued, it gives the Public Guardian and Trustee the authority to manage the person’s estate. The Act provides statutory mechanisms under which a public or private committee (a government agency or private person) may exercise what is essentially guardianship. It also provides for a court ordered committeeship. The committee has authority over the incapable adult’s financial and legal decisions about their money and property (referred to as a “committee of the estate”) or the incapable adult’s health and personal care decisions (a “committee of the person”).

In British Columbia the Personal Information Protection Act  covers the collection, use and disclosure of personal information by non public bodies.  The Freedom of Information and Protection of Privacy Act  covers the collection, use and disclosure of personal information by public bodies.  People may want or need to share personal information about a prospective or current resident.  For example at admission, the operator may ask the health authority for personal information about a prospective resident to determine whether a prospective resident has shown violent tendencies or behaviour in the past.  In other instances, other parties may want information about residents from the Operator.  [See  Chapter  Three “Legal Issues in Admission & Transfer” and  Chapter Four “Legal Issues When Living in Residential Care”.]

The issue of what and when to disclose information may also arise if the facility administration wants to properly accommodate the person and his or her needs. This can help avoid discrimination based on a protected ground under the Human Rights Code, e.g. sexual orientation, ethnicity, disability. This will be discussed further in Chapter Five  “Rights, Remedies, and Problem Resolution”.

There can be laws and policies that apply to special groups of people seeking residential care, such as veterans,  or older sponsored immigrants.  Some residential care facilities have contract beds designated for priority access for eligible Veterans. The financial, familial and legal implications of who pays for care and access to care can become especially problematic for sponsored immigrants and their sponsors.

Most issues or concerns about residential care will be addressed internally using the care facility’s complaint procedures. There are also a number of external administrative and legal mechanisms for raising concerns about residential care that may offer methods of redress or remedies (described in detail in Chapter 6, Rights, Remedies and Problem Resolution).These include:

   

* British Columbia now has a province-wide process for receiving and responding to complaints about the quality of health care services (a “patient care quality complaint”). The Patient Care Quality Office is the central complaints office within each health authority. It is required to receive, investigate and respond to complaints regarding the quality of care that a person receives. It covers both the delivery of the services and the quality of the services.  The Office derives its authority from the Patient Care Quality Review Board Act(S.B.C. 2008, c.35).

The Coroner can also investigate any sudden and unexpected death when the person was apparently in good health and not under the care of a medical practitioner,  as well as deaths from disease, sickness or unknown cause, for which the person was not treated by a medical practitioner.

* '''Canada Health Act''' - Hospitals and doctors are covered by the  Canada Health Act;  residential care facilities are not. The Canada Health Act establishes the criteria and conditions that  the provinces and territories must meet to be eligible for available federal government health care funding.

* '''Continuing Care Act and regulations''' - Continuing care is defined as one or more health care services to persons with a frailty or with an acute or chronic illness or disability that does not require hospital care. This Act allows the Minister of Health to enter into payment Agreements with operators for services given to clients so they can receive continuing care from the operator. The Act also sets out applicable standards, guidelines or directives issued by the minister.

*'''Health Professions Act:''' This act governs the regulation of a number of health professions. The Act also sets the expected response to certain harms perpetrated on people in care by health professionals.  The Act requires identified “designated health professionals” to report certain harms to their registrar, including, (a) sexual misconduct (by someone in that profession) and (b) behaviour by someone in that profession that is dangerous to the public.    Reporting sexual misconduct requires the client’s consent (or consent by his or her legal representative if the person is not capable). A list of Health Professions covered by this Act most relevant to this setting is listed in Appendix B.

;Cremation, Interment and Funeral Services Act: This Act identifies who can authorize the picking up human remains from a care facility. There is current disagreement about who can give authorization and  whether funeral instructions in an admission agreement are valid (the right to give instructions re: funeral does not  vest until after death).