Other Key Laws and Regulations in Residential Care

Beyond the Big Four - the Supporting Cast

Together the four statutory and regulatory components of the law provide the general framework for the operators of the facilities, setting out their general responsibilities, and the licensing framework, and minimum standards for operation.

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.

1. Care

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.

Health Care (Consent) and Care Facility (Admission) Act

This Act sets out the general rules for consent to treatment, the presumption of capability to consent, and what is meant by “health care” in this context. It identifies who can be a statutory (temporary) substitute decision maker for health care when a person becomes mentally incapable. It describes the scope of representation agreements in health care settings. It identifies the scope and requirements for advance directives, as well as how and when advance directives apply.

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.

It has been used primarily because Part 3 of the Health Care (Consent) and Care Facility (Admission) Act has not come into force. Part 3 creates a process allowing a substitute decision-maker to consent to the admission of an adult who is not capable of making an informed decision to a care facility. The Mental Health Act sets out a process by which the involuntary detentions can be reviewed by the Mental Health Review Board.

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.

2. Financial and Related Matters

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.

Public Guardian and Trustee Act

This Act authorizes the Public Guardian and Trustee to investigate and audit the affairs, dealings and accounts of an adult who has a guardian, an adult who is apparently abused or neglected, as defined in the Adult Guardianship Act, or an attorney under a power of attorney or an enduring power of attorney for failing to follow his or her duties properly.

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.

3. Substitute Decision-Making

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”).

4. Privacy Matters

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”.

5. Special Populations

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.

6. Rights, Remedies and Oversight

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:

• Community Care Licensing Offices - Community Care Licensing is responsible for the developing and implementing legislation, policy, and guidelines to protect the health and safety of people being cared for in licensed facilities. Community Care Licensing falls under the Home, Community and Integrated Care Branch (Health Authorities Division). A Medical Health Officer appointed under the Public Health Act is responsible for issuing care facility licences, inspecting licensed facilities and investigating complaints that an unlicensed facility is being operated. Inspections of facilities are carried out on a risk assessment basis. Licensing deals with health and safety complaints, as opposed to quality of care matters.

• 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).

• Patient Care Quality Officers review complaints received, investigate and are required to provide responses back to the complainant within 30 business days, giving information about what was learned during the investigation. The Act also requires each regional health authority to establish a Patient Care Quality Review Board to review complaints that remain unanswered within 30 days or not answered to the person’s satisfaction.

• Human Rights Code - The Code protects people from discrimination in many areas including “accommodations, services or facilities customarily available to the public”. In order to be “discrimination”, the action must be without bona fide and reasonable justification. The Code also protects from harassment (a form of discrimination). Unlike the Charter which only covers [public] government action, the Human Rights Code covers the actions of both public and private bodies. The areas protected for accommodation, services or facilities relate to a person’s or group’s age, physical or mental disability, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, or sexual orientation. Cases are heard by the Human Rights Tribunal,

• Ombudsperson Act - The Office of the Ombudsperson is responsible for assuring that specified provincial government ministries or public agencies treat the public fairly and reasonably. The Office is responsible to impartially investigate the complaints to determine whether fair treatment has occurred, and whether the actions and decisions of provincial government ministries or public agencies were consistent with relevant legislation, policies and procedures.

• Canadian Charter of Rights and Freedoms- The Charter guarantees certain civil rights to people in Canada from the policies and actions of all level of government. It covers fundamental freedoms, equality rights, legal rights, democratic rights, mobility rights, and language rights, many of which are particularly relevant to the treatment of people in residential care.

• Criminal Code - As in any other setting, some actions that occur in residential care facilities such as theft, assault, gross neglect leading to death or homicide may come within the scope of criminal law. The actions of staff, volunteers, visitors as well as residents can come under the force of the Criminal Code of Canada. Very recently, s. 215 of the Criminal Code (“failure to provide the necessaries of life “) was used in a precedent setting way to lay a charge against staff in an institutional (non care) setting.

• A resident may have been experienced problems with family, neighbours or others in the community that follow the resident into the facility. New problems or conflicts may also develop there. In some of these cases, advocates and providers may need to be familiar with peace bonds (“810 recognizances”) and “no contact orders” issued by criminal court judges; “release conditions”. As well they may need to be familiar with “family law protection orders” under the Family Law Act.

• Consumer Protection - Some services provided to residents in care facilities may be direct performance contracts. The Business Practices and Consumer Protection Act prohibits unfair practices, sets out the requirements for certain consumer contracts and provides licensing requirements for regulated businesses. The Act consolidated several consumer statutes. It protects consumers by standardizing contract terms, clarifying cancellation rights and ensuring that penalties for infractions are applied consistently across industries. The Ministry of Health is currently drafting standardized contract template for admission agreements.

• Coroners Act - Among other things, this Act places a responsibility on everyone in British Columbia to report the death of anyone who they believe has died as a result of violence, accident, negligence, misconduct or malpractice, or suicide to a coroner or peace officer. That includes the death of a person living in a residential care facility or who is transferred to a hospital or other setting from a residential care facility. Accidental, negligent or violent deaths in residential care may involve a wide variety of circumstances, including a missing person who is cognitively impaired, a mechanical equipment malfunction, scalding during bathing, or assaults between residents.

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.

7. Legislation Related to Funding

• 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.

• The extended care services provided in residential care facilities are not included in the funding criteria and national standards contained in the Act. However, for the purpose of this legal manual, the Canada Health Act remains important as it relates to what hospital administration can do or can charge patients in the transition from hospital care to residential care. This is described further in Chapter Three Legal Issues in Admissions & Transfers.

• 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.

8. Professional Responsibility Laws

• 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.

9. Miscellaneous

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).

Labour Relations Code

Governs the conduct of both parties in the event of a breakdown in labour negotiations. Also the Code calls for the development of an essential service plan for residents in the event of labour disruption.

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

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."

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

(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."

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 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.

(1) A preliminary version of a document, (2) an order prepared following judgment and submitted to the court for its approval, or (3) to prepare, or draw, a legal document.

(1) A person charged with the legal care of someone under a legal disability. (2) A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

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

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

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.

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 contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."

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 method of calculating time under which the days for a legal deadline are counted according to the days when the court is open for business, excluding weekends and holidays. See "calendar days" and "clear days."

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 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.

(1) A historical decision of the courts, or (2) the principle that such historic decisions of the court are binding on subsequent judges hearing cases of a similar nature or with similar circumstances. (3) The term may also refer to templates or sample documents used to draft new documents. See "common law."

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, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

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

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.

A person having a duty to enforce the law as a result of their position or employment, including municipal police officers as well as RCMP officers, sheriffs, customs officers and mayors, among others.

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."

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) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

An officer of the court with the power to make certain decisions, including the settlement of a lawyer’s bill, a party's costs of a court proceeding, and settling the form of an order. An officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings. See "jurisdiction" and "pleadings."

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

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."