The Basic Recourse Process under CCALA

“Complaint”

“Is an expression of dissatisfaction when an expectation is not met. Although it may appear trivial from a health organization’s perspective, it is a very real problem to the complainant and should be taken seriously. Complaining is a patient/resident/ client/customer’s right and the health care organization has the responsibility to inform its customers how to complain”.

- Health Association of B.C.

As part of the overall responsibility to assure and support the wellbeing of residents (“a person in care”), the operators of facilities licensed under the Community Care and Assisted Living Act (CCALA or “the Act”) and Residential Care Regulation are required to establish “fair, prompt and effective” processes for resolving complaints and disputes. The Act also requires operators to ensure that the resident is not subject to retaliation as a result of anyone expressing a concern (“making a report”). Other Acts such as the Human Rights Code offer similar non-retaliation or protection safeguards.

Residential care regulations

Dispute resolution

60 A licensee must:

(a) establish a fair, prompt and effective process for persons in care and their parents or representatives, family members and contact persons to express a concern, make a complaint or resolve a dispute,

(b) ensure that there is no retaliation against a person in care as a result of anyone expressing a concern or making a complaint, and

(c) ensure that all complaints, concerns and disputes are responded to promptly.

The Regulations require operators to inform residents and their representatives on admission about facility’s complaints process and how they can complain to the local health authority’s Medical Health Officer (Licensing) and the Patient Care Quality Office. Operators are also required to record any complaints they receive, plus document how they responded to them.

Operators may identify the complaint process in the admission agreement and may specify how the person is expected to raise concerns. Some operators may have an “internal ombudsperson” so that concerns can be directed to one person who will be responsible for follow-up. It is important to note the law does not require the resident or other person to use a step by step (“start internally and escalate if necessary”) process. Although this might commonly be advisable, there may be good reasons why a resident or other person might not do that. For example, the operator or people responsible for the internal complaint mechanism may be part of the problem, previous efforts may have gone unaddressed, or the effort has otherwise been shown to be futile.

Under Community Care and Assisted Living Act and the Regulations, operators are allowed to determine what their own complaints processes will be, as long as they meet the test of being “fair, prompt and effective.” While this offers flexibility, this can result in wide variations in the complaints processes among the facilities across the province. As a result, the BC Ombudsperson recommended the Ministry of Health take a more standardized (“specific, legalized”) approach with timeframes and records. While on its face a laudable goal, there may be numerous challenges with a standardized approach.

Concerns About Raising Concerns

Identifying issues and concerns in a care facility and having them addressed in an appropriate, timely, and effective manner is essential to the respecting the rights and dignity of residents, as well as assuring their wellbeing. It can help prevent crises, or recurrence of issues. However, it is very commonplace for residents, as well as family, friends, or others including staff to be very cautious about bringing facility related concerns to the attention of persons who may be able to resolve the issues.

Why the apprehension?

Residential care can be a relatively socially isolated environment. Residents often have small social networks before coming into residential care and may lose their remaining ties with family, friends and rest of the community. This happens for many reasons, including having to leave their friends and community because of “first appropriate bed” policies. Many residents recognize that they are very dependent on staff and others for care, and are often cautious about expressing anything that might be viewed as “rocking the boat”. Other residents may not have the physical capacity or mental capacity to identify problems or report their concerns.

Family members and friends are often concerned about the potential for adverse consequences for the resident when they are not there, as well as for themselves (such as restrictions on visiting). Volunteers are there at the largesse of administration. Staff may be concerned about risking their job, including ending up with reduced hours or less favourable shifts, especially if they are casual and part-time workers. Sometimes people’s reactions simply reflect fear of the unknown. In other instances, these are reasonable responses to previous situations that may not have been handled well in this care facility or others.

Reporting Protections

Who is protected and when?

The CCALA and its accompanying Regulations recognize these realities and offer some protections. In addition to requiring the operator have a fair, prompt and effective process for expressing and addressing concerns, the Regulations specifically note that, the operator must ensure that there is no retaliation against a resident (“person in care”) as a result of any person expressing a concern or making a complaint. All complaints, concerns and disputes are expected to be responded to promptly. That places a positive duty on the Operator to address problems and concerns promptly. Both CCALA and the Adult Guardianship Act offer reporting protections to the resident, staff and others, but to different degrees. See Figure 1 for a summary.

The CCALA, for example, offers residents specific protection against retaliation and adverse consequences. The Operator must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a resident, where a person has made a report or has expressed an intention to do so. The Operator or any other person cannot act in a way that negatively affects service to resident as a result of an abuse report or intention to make the report. Staff and other people also have certain protections if “abuse” reports are made in good faith.

Special Note: Who’s protected and when?

It can be challenging at times to understand the scope of existing reporting protections, leading to the question, “So who is protected and when?” The Residential Care Regulations definitions are specifically framed in the context of “reportable incidents”. This leaves the possibility that residents, families and staff may not be protected from adverse consequences when raising concerns that do not fall in this narrow framework.

The abuse reporting protections of the Adult Guardianship Act(AGA) apply to all settings including residential care, although the AGA has not traditionally been used in this setting. The AGA safeguards protect the identity of all good faith reporters. Section 46 (4) of the AGA offers certain employment and professional protections for people who report in suspected abuse or neglect of vulnerable adults made in good faith to a “designated agency” (generally health units in the community). Residents and other people are protected against intimidation and coercion when an abuse report has been made in these circumstances. See Figure 1.

Figure 1 Reporting Protections

	Residential Care regulations	Community Care and Assisted Living Act	Adult Guardianship Act
Residents are protected against	Retaliation (irrespective of who raises the concern). Non specific	Retaliation – licensee or other person cannot negatively affect service to a resident, as a result of an abuse report, or intention to make a report	* Having identity disclosed (as a reporter) Threats, intimidation, coercion Being penalized (pecuniary or otherwise)
Staff are protected against	(see CCALA)	* No action or other proceeding if a report is made in good faith. Licensee must not take action against employee or agent for reporting	* Having identity disclosed (as a reporter) Employment or professional repercussions Being penalized (pecuniary or otherwise)
Others are protected against	(see CCALA)	No action or other proceeding the report is made in good faith	* Having identity disclosed (as a reporter) Intimidation, coercion Being penalized (pecuniary or otherwise)

Threats of Being Sued

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