Admission to the Residential Care Facility

“The question of consent should play a central role in discussions about admission to residential care facilities. Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. It follows that seniors themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, seniors’ capacity should be assessed.”

Best of Care, pg. 243

Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered. Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.(1)

In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.

Other mentally capable adults will prefer to continue to “live at risk”, even if it means the strong possibility of deteriorating health, being injured (e.g. falls) in their home or dying there. However, some mentally capable adults will find that family or others may try to act in what they consider the person’s “best interests” and “try to plan around them.”

In other instances, individuals may not have insight into their conditions, or the effects that their decisions and risk taking have on others. Still others have come to rely on promises that family or friends made them in the past to “not make them go to a nursing home” (family or friends may simply no longer be able to keep that promise, or may not have ever intended to try). In many of these cases, silence, avoidance, subterfuge done “in their best interest” and “little lies” (“Mom, it is just for a short stay until you are stronger”) or even blatant misrepresentation has been used by family or others in the health care system to have the person admitted to a care facility.

Agreeing to the Admission

In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. (2)At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.”(3) These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.(4)

This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.

Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is not considered as sufficient legal authority to consent to admission or sign the admission agreement.(5)

Demonstrating Consent

Consenting to admission can be done verbally or in writing. A person may indirectly communicate informed consent to the Operator by nodding the head, cooperating with the questions asked, etc. Verbal consent has occasionally created problems for Operators when the resident no longer remembers or later denies having given consent. Today, Ministry of Health policy focuses on have a signed document showing consent. Arguably, that does not mean the resident or substitute must sign. However, it can be important for the Operator to document in some manner that the person has consented to admission, even if it was done verbally.

Assessing Capability to Consent?

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As noted above, health authorities are required to assure “that a client’s capacity to provide informed consent to facility admission has been assessed. “Assess” may be interpreted in two ways in this policy context:

a) colloquially (“determine if the person appears to be mentally capable of providing informed consent: consider the way they communicate, signs and behaviours…”, “Does it seem as if they are consenting and are mentally capable of making this decision (recognizing that acquiescence is not the same as consent)?”) or

b) undertake a formal assessment of mental capability.

The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. (6)It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.(7)

If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. (8)A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.

The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute Decision-Making”.

What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?

For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else. (9)

Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. (10)Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”

In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.

However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. (11)In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.

It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation. (12)

Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.

References

1. Ombuds, Best of Care. [page, 243].
2. Ombuds, Best of Care. [page, 243].
3. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013.
4. Ombuds, Best of Care. [page 234]
5. For general information on private trustees for Old Age Security or Canada Pension Plan, see: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3506cpp&ln=eng (Last accessed January 9, 2016).
6. Human Rights Code [RSBC 1996] c. 210.
7. HCC Policy Manual. Chapter: 1 Overview Number: 1.A Section: At Home And Community Care Services Page: 2 Of 4 Subsection: Effective: January 1, 2013.
8. For a legal discussion of problems with “personal care decisions” that come up in residential care facilities in Ontario, see : R. Chrolavicius. ( November 26, 2013) Misuse of powers of attorney for personal care. Advocacy Centre for the Elderly. Online: http://www.advocacycentreelderly.org/appimages/file/Misuse%20of%20Powers%20of%20Attorney%20for%20Personal%20Care-LR%203.pdf (Last accessed January 9, 2016).
9. The Mental Health Act, again is often used to admit individuals who do not have anyone to consent on their behalf.
10. See:
    1. Representation Agreement Act , [RSBC 1996] c. 405, s. 1 Definitions “Personal care”.
    2. Power of Attorney Act [RSBC 1996]c. 370. Part 2 Enduring Power of Attorney, s. 10 (Definitions, “personal care “).
    3. Also see Nidus. “ Personal Care”. Online : http://www.nidus.ca/?page_id=275 (Last accessed January 9, 2016).
11. See Representation Agreement Act.
12. s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes
    1. (a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,
    2. (b) a plan for minor health care that
       1. (i) is developed by one or more health care providers,
       2. (ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and
       3. (iii) expires no later than 12 months from the date consent for the plan was given, and
    3. (c) participation in a medical research program approved by an ethics committee designated by regulation.

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