Overview of Legal Issues in Residential Care

This chapter introduces residential care in British Columbia. It provides an overview of the laws that commonly come into play for residential care facility providers, the staff and the residents who live there. The chapter is divided into two parts. The first is an overview of residential care system and the people who work in this system; the second describes key laws that govern the area and the lives of many residents.

What is Residential Care?

“Residential Care” is the formal term used by the British Columbia Ministry of Health for what the public commonly calls nursing homes, care homes, care centres, long term care homes, extended care, or geriatric care facilities. The Ministry of Health notes:

“Residential Care is for adults with complex health care needs requiring 24-hour professional care due to physical disability or mental or behavioral conditions, including brain injuries or dementia.”

1. What is Residential Care?

The term “residential care” refers to places where a person can receive health care services, accommodation and support on a regular basis. Residential care is typically viewed as providing a higher level of care and support than other types of facilities in the community such as assisted living. Since 2002 under provincial health care policy, publicly funded (subsidized) residential care facilities are available only to people who need “complex care”.

While acute care hospitals are places of temporary stay for health care, residential care facilities are very importantly the person’s home in which health care, assistance and other support will be provided on a regular, ongoing basis. It is where the people live their lives and continue to have relationships. Residential care facilities are also collective settings, meaning that the rights of residents must sometimes be balanced against the individual and collective rights of other residents to safety, privacy, etc.

When is it Residential Care?

Residential care facilities are required to provide a number of core services. These include:

• Accommodation
• 24-hour care
• Meals, housekeeping, laundry, recreational activity programs, emergency response
• Personal care assistance
• Other services such as physical therapy, social work and nutritional support
• A secure environment.

British Columbia’s residential care facilities differ from other types of accommodation, services and support such as assisted living facilities in the types of health care services and support (“prescribed services”) that can be provided there, as well as the numbers, and intensity of services and support. Residential care facilities must provide three or more “prescribed services” These services include:

(a) Regular assistance to the person with activities of daily living, including eating, mobility, dressing, grooming, bathing or personal hygiene;

(b) Medication administration or monitoring as the person takes the medication; storing and distributing medication;

(c) Maintaining or managing the resident’s cash resources or other property;

(d) Monitoring the resident’s food intake or whether the person is adhering to a therapeutic diet;

(e) Providing structured behaviour management and intervention;

(f) Providing psychosocial rehabilitative therapy or intensive physical rehabilitative therapy.

Any care facility that provides these “prescribed services” to three or more persons who are not related to each other by blood or marriage must be licensed as a residential care facility.

It is not always easy to identify whether a facility provides independent living, residential care or an assisted living simply by its business name. The area is further confused by the fact that some businesses or organizations offer a “campus of care” in which different kinds or levels of health care services, accommodation and support are being offered in the building or location (for example, independent living, assisted living, residential care, and specialized dementia care). The situation is further complicated by the fact that some residential care may be provided in “extended care “(an extended care wing of an acute care hospital, or in an extended care building, which may be physically near the hospital).

Practically speaking, what makes residential care facilities in British Columbia distinctive are the characteristics of the people who live there. In contrast to assisted living facilities where residents must be able to make decisions on their own in order to live there, a sizeable proportion of people who live in British Columbia’s residential care facilities today may have difficulty making some types of decisions without support.

3. What is Complex Care?

The term “complex care” as used by the Ministry of Health refers to care and support for people who:

• are moderately or severely cognitively impaired;
• are physically dependent (their medical needs require professional nursing care, and they need a planned program to retain or improve their functional ability);
• have multiple disabilities and/or complex medical conditions that require professional nursing care, monitoring and/or specialized skilled care (“clinically complex”); or
• have severe behavioural problems on a continuous basis.

Quick Facts on Residential Care in British Columbia (2009)

• In 2009, there were 348 residential care facilities in the province.

• Together these facilities had 28,992 residential care “beds”.
  • Two thirds (19,165) of the beds came under the Community Care and Assisted Living Act.
  • One third (9,827) of the beds came under the Hospital Act (7,099 extended care beds, and 2,728 private hospital beds).

• Private hospitals are primarily located in Vancouver Coastal Health Authority and Fraser Health Authority.

• 91% of residential care beds were publicly subsidized (26,491 beds).

• Many BC residential care facilities have a high turnover of residents and staff
  • Over 38,411 adults received residential care services in 2009.
  • Approximately 45-50% of the residents are new each year.
  • There is an annual staff turnover of 50 per cent.

• Approximately 43% of the care aides in the province work on a casual basis (that means they have no guarantee of hours per week and may have multiple employers).

Each Health Authority’s website carries basic information on the residential care facilities within their jurisdiction. See Table 1 for the websites. That may include for example, the facility’s location, the costs, the number of beds and how many (if any) are subsidized. It may also include information on whether the facility has been nationally accredited, any special security features, if there are policies on pets, scooters, or smoking. Some health authority lists of residential care facilities will also direct the public to the provider’s website with more information.

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

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