Chapter Three Legal Issues in Residential Care References

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Legal Issues in Residential Care:
An Advocate's Manual
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Legal Issues in Residential Care: An Advocate's Manual.
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Introduction
Introduction and Forward
Acknowledgements
Chapters
Chapter Resources and Appendices
Chapter One Resources and Appendix
Chapter Three Resources and Appendix
Chapter Four Resources and Appendix
Chapter Five Resources and Appendix
Chapter Six Resources and Appendix
Chapter Seven Resources and Appendix
From
BC Centre for Elder Advocacy and Support ‎
v • d • e

References[edit]

  1. There are no specific admission criteria for private hospitals or the private pay beds in residential care facilities, other than the ability to pay. However, most of the people using the resource will have similar care needs to those in a subsidized residential care facility or extended care facility. As the Ombudsperson report The Best of Care (2012) notes all three types of facilities now provide complex care. [page 210]. This report will be referred to as the “Ombuds, Best of Care” throughout this manual.
  2. This is determined by the health care tool, the Resident Assessment Instrument (RAI).
  3. See for example, Interior Health, which states that the person must also “Have tried all of the avenues available for receiving care at home.” Online: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/Eligibility.aspx (Last accessed May 1, 2014).
  4. British Columbia. Health Services. Health and Safety. Long-Term Residential Care. Online: http://www2.gov.bc.ca/gov/topic.page?id=4FEC0F570BC04692810548267D09577E (Last accessed May 1, 2014).
  5. Ministry of Health Home and Community Care Policy Manual, Chapter 1, Overview.
  6. Alternate Level of Care refers to the transition period between acute (hospital) and post-acute ( non hospital) settings. People in this transition period are referred to as alternate level of care (ALC) patients. Even though they no longer require the intensity or specialized medical care provided by acute hospitals, they are not able to be discharged to the community ( to a residential care facility or “back home”) because the available resources are unable to meet their needs. They may be delayed from being discharged to a post-acute Provider, typically because of lack of appropriate, available space. See: Canadian Institutes for Health Information. November 2012. Seniors and alternate level of care: building on our knowledge. Online: https://secure.cihi.ca/free_products/ALC_AIB_EN.pdf (Last accessed May 1, 2014).
  7. Adapted from Best of Care. [pg.34].
  8. Ombuds, Best of Care. [pg. 225].
  9. Ombuds, Best of Care. [pg. 34]. Also for a good discussion of surrounding the law and ethics of discharge from hospitals to nursing homes and other settings in the Ontario context, see J. E. Meadus & J. A. Wahl. Transfer from hospital to long-term care: reframing the ethical debate from the patient’s perspective. (Toronto: Advocacy Centre for the Elderly, 2008), 4 Online: http://www.acelaw.ca/appimages/file/ACE%20-%20Ethical%20Issues%20&%20First%20Available%20Bed%20Policies%20-%202008.pdf (Last accessed May 1, 2014).
  10. Ombuds, Best of Care. [pg. 34].
  11. Ombuds, Best of Care. [pg. 33].
  12. See for example, Vancouver Island Health Authority Residential Care Guide, pg. 6[ “VIHA”].
  13. Home and Community Care. Online: http://www2.gov.bc.ca/gov/theme.page?id=A8F32056E4192102A51A3F0FF373223C
  14. Resident Bill of Rights. Online: http://www2.gov.bc.ca/assets/gov/topic/D3E0B9FAB55484D135A5C5201D799D96/pdf/adultcare_bill_of_rights.pdf (Last accessed May 1, 2014).
  15. Residential Care Regulations. B.C. Reg. 96/2009, as amended. Online. http://www.bclaws.ca/Recon/document/ID/freeside/96_2009#section48
  16. The Ministry of Health is currently reviewing “Chargeable extras”.
  17. HCC Policy Manual. Chapter: 7 Client Rates Number: 7.B.1 Section: B Income-Based Client Rates. Subsection: 1 Assessment of Client Rates. (Effective: January 1, 2013) (“HCC, c. 7”)
  18. HCC, c. 7.
  19. HCC, c. 7.
  20. Farrell, J. (July 15, 2013). Why wheelchair fees are not fair and what they say about the state of seniors care in BC. Centre for Policy Alternatives. Online: https://www.policyalternatives.ca/publications/commentary/why-wheelchair-fees-are-not-fair-and-what-they-say-about-state-seniors-care#sthash.y4TGTDck.dpuf (Last accessed May 1, 2014).
  21. Ministry of Health. Who pays. Publicly subsidized or private pay services. Online : http://www2.gov.bc.ca/gov/topic.page?id=D2A2D928853B489DBC280E9F451187F1&title=Publicly%20Subsidized (Last accessed May 1, 2014).%20or%20Private%20Pay%20Services [“Who pays”] (Last accessed May 1, 2014). Fraser Health for example notes under “How do I access private pay facilities? that “an assessment by Fraser Health staff is not needed for admission to a private pay residence.” Online: http://www.fraserhealth.ca/your_care/residential_care/options_for_residential_care/ ( Last accessed May 1, 2014).
  22. Ibid. Who pays.

End 22 Start 23

  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 May 1, 2014).
  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 May 1, 2014).
  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 May 1, 2014).
  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.

End 34 Start 35

  1. Advocacy Centre for Elderly. Long-Term Care Facilities in Ontario: The Advocate's Manual. Chapter 3. Entering a long-term care facility [“ACE LTC Manual”]
  2. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013. [“HCC, c. 6”]
  3. ACE LTC Manual. Chapter 3. Entering a long-term care facility 3.29.
  4. Representation Agreement Act, s. 3.1; Health Care Consent and Care Facility Admission Act [RSBC 1996] c. 181 s. 19.91
  5. Romano, L & Meadus. J. (August 5, 2009). Congregate living and the law as it affects older adults . Research Paper for the Law Commission of Ontario: Advocacy Centre for the Elderly. [Page 23]. Online: http://www.advocacycentreelderly.org/appimages/file/ACE-LCO-Congregate_Living_and_the_Law_as_it_Affects_%20Older_Adults.pdf (Last accessed May 1, 2014).
  6. This is language being used by some Operators. This is not the same as nominating a committee.
  7. Ombuds, Best of Care. [pg. 242].

End 41 Start 42

  1. Business Practices and Consumer Protection Act [SBC 2004] c. 2. Online: http://www.bclaws.ca/Recon/document/ID/freeside/04002_00
  2. BC Government. (2013). Planning for Your Care Needs. Online : http://www.health.gov.bc.ca/library/publications/year/2013/planning-for-your-care-needs.pdf [“Planning Needs”] (Last accessed May 1, 2014).
  3. Ibid. Planning Needs.
  4. RCR, s. 47 (2)
  5. Mental Health Act [RSBC 1996] c. 288.
  6. See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).
  7. Ombuds, Best of Care, Finding 101.
  8. See for example, BC. Civil Liberties Association. “Suggested changes to BC’s Mental Health System regarding involuntary admission and treatment in non-criminal cases” Adopted by the BCCLA, 2011,
  9. British Columbia Ministry of Health and Ministry Responsible for Seniors. (April 1999). Model Standards for Continuing Care and Extended Care Services. Online: http://www.health.gov.bc.ca/library/publications/year/1999/modelstandardsofcare.pdf ( “Model Standards”) (Last accessed May 1, 2014).
  10. Model Standards . Residential Services. Pre-Admission. Standard 1.
  11. Home and Community Care Policy Manual. Chapter: 6 Residential Care Services Number: 6.A. Section: A General Description and Definitions . Subsection: Effective: January 1, 2013
  12. Ombuds, Best of Care, p. 227.
  13. Adapted from ACE, LTC Manual, Chapter 2 (2.17).
  14. Other matters that can affect the degree a facility is appropriate are the care and specific services; the facility's organizational structure; types and qualifications of staff; access to community resources (e.g. advocacy groups, counsellors and volunteer services); physical environment and resident's personal space and furnishings; programs, services, supports; and, pertinent policies related to care planning, food services, medications, smoking, alcohol use, visiting, restraints, pets, per diem cost, personal charges (e.g. dental), and personal belongings.
  15. There are legal responsibilities to accommodate to the needs of residents.
  16. See: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
  17. See for example, Sussman, T. Churchill, M., Brotman, S. Chamberland, L..et al. (2012) “Identifying barriers, developing solutions: addressing the health and social needs of gay, lesbian, bisexual and transgender older adults who reside in long term care. “ Montreal, Quebec. Or Qmunity Generations. Aging Out Project Policy Dialogue. (November 19, 2013. Burnaby. BC),
  18. See for example, the Vancouver Island Health Authority Residential Care Guide at page 6 states “If the first bed offered is not accepted, the client is no longer considered eligible or accepted for residential care. Clients in hospital who do not accept the first appropriate bed will be discharged.”
  19. See VIHA, ibid. pg. 6.
  20. Chapter: 6 Residential Care Services Number: 6.D Section: D Access To Services.
  21. See: Interior Health.”Accessing Residential Care. “ Online : http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx
  22. See:
    1. Interior Health: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx
    2. Fraser Health : http://www.fraserhealth.ca/media/Residential_Care_in_FraserHealthweb.pdf (Last accessed May 1, 2014).
  23. Ombuds, Best of Care. Finding 80 and Recommendation 104.
  24. BC Care Provider Association. Residential Care Health and Safety Guidelines. A Guidebook. Online : http://www.bccare.ca/wp-content/uploads/bccare_safety_grid_v11.pdf
  25. Director of Licensing. Standard of Practice. “Advance Directives and Care Plans”. Number: 01/08/2006 Effective Date: September 2006. Online : http://www.vch.ca/media/2008_08_09FamilyChildCare_regulation.pdf (Last accessed May 1, 2014). [“Advance Directives”]
  26. Model Standard, 3. Standard: 3. Residents' individual health needs and psychosocial status are assessed by the interdisciplinary team.
  27. RCR, s. 81. Note the Vancouver Coastal Health Director of Licensing. “Advance Directives” document states six weeks.
  28. Ibid.
  29. For more information on Veterans and Residential Care matters such as client rates, see: HCC Policy Manual. (Effective: April 1, 2013). Chapter: 7 Client Rates Section 7.B.4 (Income-Based Client Rates); also Subsection: 4 Alternate Payers. Also, Chapter: 6 Residential Care Services Number: 6.D Access To Services.
  30. Ibid.
  31. See HCC Policy 6.C. Residential Care Services, Service Needs Determination.
  32. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.D.1 Section: D Access To Services Page: 3 of 3 Subsection: 1 Supporting spouses with differing care needs
  33. HCC Policy Manual. Ibid.



This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.
v • d • e
Introduction
Chapter One: Statutory Framework
Chapter Two: Residents' Bill of Rights
Chapter Three: Legal Issues in Admission and Transfer
Basic Issues in Eligibility for Residential Care · Moving to Residential Care · Costs · Agreeing to the Admission · Demonstrating Consent · Assessing Capability to Consent? · What Kind of Decision is Admission to a Residential Care Facility and Who Makes It? · Terms in Admission Agreements and Contracts · Payment Default and Guarantees · Signing as a Substitute Decision-Maker (SDM) · Other Areas · Contractual Protections · Screening · Assessing Capacity for Admission · Consent · Use of the Mental Health Act to Admit Older Adults to Residential Care · What is “Appropriate”? · The Effect of Declining an Offered Placement · Advance Care Planning · Care Plans · Admission of Veterans · Admission of Aboriginal Residents · Admission of Spouses with Different Care Needs · Admission of Sponsored Immigrants Needing Care
Chapter Four: Legal Issues When Living in Residential Care
Chapter Five: Rights, Remedies and Problem Resolution
Chapter Six: Consent and Capacity
Consent: An Area of Confusion · Mental Capacity to Consent · Presumption of Capability · Misuses of Presumptions · How is Capability Determined? · Understanding Tests of Incapability · The Conditions of Health Care Consent · Who Must Seek Consent for Health Care? · What is Meant by “Health Care”? · Consent Rights · The Consent Process · How Does a Person Give Consent? · Exceptions to Requiring Consent · Health Care at the Margins · Areas of Confusion Around Health Care Consent in Residential Care · Information Rights · Exploiting Consent Loopholes? · Consent and Care Plans · Rights Associated with Care Plan Consent · Advance Care Planning - Advance Care Plan and Advance Care Directives · Consent and Advance Care Directives · Common Areas of Misunderstanding for Advance Health Care Consent · What is Personal Care? · Determining a Resident’s Capacity to Make Personal Care Decisions · Intimacy and Sexual Relations · What Constitutes Consent in the Context of Intimacy and Sex?
Chapter Seven: Substitute Decision-Making
Resources, References and Information


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