Consenting to Admission to a Care Facility

Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. The individuals 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, the individual’s capacity to make that particular decision should be assessed. This is not necessarily a global assessment of mental incapacity, as the person's mental capacity is dependent on the particular type of decision to be made.

Many older adults are capable of consenting (or refusing consent) to admission to a care facility. Age or disability alone does not take away that capacity.

The consent must free (of misstatements, misrepresentation and undue influence), plus it must be informed. That means they should have appropriate information on all material matters, which should include:

• where they are going (admission to a care facility and not returning home);
• what care they can expect there (general care plan);
• what they will be paying, what is included as basics and what are extras.

Arguably, the capacity to consent to admission may be an easier threshold for many prospective residents to meet than having the capacity to contract.

Screening

Care facility operators have a responsibility prior to admission to determine if a prospective resident’s needs can be met at that particular facility. This involves considering:

• the needs of the person
• the number of employees plus the their training and experience
• patterns of employee coverage
• the design of the community care facility and its physical resources
• the health, safety and dignity of other persons in care
• any criteria set by, or advice or information from, a funding program (1)

Assessing Capacity for Admission

The person (or if substitute decision-maker) must give informed consent to admission. There are two aspects – having the capacity to consent and having the relevant information on which make the decision about admission generally or to a particular facility.

Consent

Unlike some jurisdictions, British Columbia does not describe a specific legal process for consenting to admission. However common law elements of consent are relevant for consent to admission to a residential care facility:

1. The consent must relate to the admission.

2. The consent must be informed.

3. The consent must be given voluntarily.

4. The consent must not be obtained through misrepresentation or fraud.

A person is presumed to be capable with respect to admission to a care facility unless “reasonable grounds” to suspect incapacity exists. Incapacity may be suspected on the basis of direct observation of the person or from information obtained from family or other caregivers.

Part 3 - Health Care (Consent) and Care Facility (Admission) Act - The process that is currently not there

Part 3 of this Act created a process for appointing a substitute decision-maker when a person had been assessed by a health care provider as incapable of consenting to admission to a care facility and a substitute decision-maker was not already in place. A substitute would be appointed in a way similar to how temporary substitute decision-makers are now appointed to make health care decisions.Under Part 3, substitute decision-makers would be required to act in the best interests of the person being considered for admission and would have to consult with that person and his or her family or friends who asked to participate in the decision. The substitute decision-maker would have to consider the person’s previously expressed wishes, whether he or she would benefit from admission, and whether another viable option was available. If and when it is in place, Part 3 will require health care facilities, at the time of admission, to provide patients with a proposal that clearly outline the care to be provided. Patients or their substitute decision-makers would be able to accept or reject this care proposal. A mechanism for bringing Part 3 of the original Health Care Consent law or something akin to it into force is being explored by the government.

Use of the Mental Health Act to Admit Older Adults to Residential Care

The Mental Health Act (2) is also sometimes used to admit cognitively impaired (and sometimes non-impaired older adults) into residential care facilities if they cannot consent or will not consent to go. In some instances these involuntary detention cases come about as a result of a person having an unaddressed health problem, an alcohol or other substance use problem, or the person is living in perceived unsafe conditions, including suspected abuse or neglect by others. In a typical situation, family expresses concern, and they then contact Mental Health or police to bring the person to the hospital. In other situations, the person may be living alone with few community supports. She or he has not selected anyone as substitute decisionmaker (that is, has not done advance planning) and refuses to go to a facility.

The older adult is first taken to a “designated mental health facility” under s.22 of the Mental Health Act . The term “designated mental health facility” in practical terms refers to most public hospitals. The person can be held there involuntarily for 48 hours on a medical certificate signed by one doctor which declares that the individual is a “person with a mental disorder” and in need of protection. This becomes the basis of the older adult’s involuntary detention. Within 48 hours, a second certificate continuing the involuntary detention must be signed or the person must be released.

Mental Health Act, [RSBC 1996] c.288 s.1

"person with a mental disorder" means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability (a) to react appropriately to the person's environment, or (b) to associate with others "treatment" means safe and effective psychiatric treatment and includes any procedure necessarily related to the provision of psychiatric treatment.

The person may then be involuntarily transferred to a residential care facility using section 37 of the Mental Health Act [“put on extended leave”]. A person who is put on extended leave and transferred to a residential care facility continues to receive psychiatric “treatment” (medications) for the mental disorder, but in a residential care facility instead of in a mental health facility. The involuntary detention remains in place. The person may have treatment imposed and is not at liberty to leave a facility.

The Ombudsperson has noted that this is an inappropriate use of the Mental Health Act:

“An involuntary detention under section 22 results in a substantial loss of civil liberties, including freedom to leave the facility, and for this reason the Mental Health Act includes safeguards to ensure that a fair process is followed and peoples’ rights are respected.”

A person can challenge the involuntary placement (detention) through a Mental Health Review Board hearing (s. 25). In the alternative, they can apply directly to the Supreme Court to challenge their involuntary detention (s.33). Both remedies are rarely used for older adults, and these remedies exist more in theory than in practice. The Best of Care report questioned the fairness of involuntarily detaining people under the Mental Health Act, and then charging them residential care facility fees for the “privilege” of being involuntarily detained.

The more pressing legal issue, however, may be whether or not the Mental Health Act is an appropriate mechanism when someone has a concern about an older adult’s living situation. In case law, the Mental Health Act has not been considered a violation of the person’s Charter (section 7 and 9) rights, largely because of the two physician certification process. (3) However if the certificates are signed based on limited if any information and the person is effectively “forced” into care, there is an arguable legal case that the involuntary detention violates the person’s Charter rights.

The British Columbia Ombudsperson specifically found that the health authorities’ use of sections 22 and 37 of the Mental Health Act to involuntarily admit seniors to mental health facilities and then transfer them to residential care was being done without clear provincial policy to ensure that the Mental Health Act is used as a last resort. This omission meant the Ministry was not acting in a way that assured older adults were not unnecessarily deprived of their civil liberties. (4) Advocacy groups have noted that the involuntary detention provisions of the Mental Health Act endure long past the admission process, and have long lasting repercussions for the individual in residential care. For example, it effectively strips individuals of the health care rights that they would otherwise enjoy. (5)

Special Note: Rights Information is required on 2nd Certificate of protection

At the point when the second certificate of protection is signed, the detained older person is supposed to receive “rights information”, including being shown the information by which they were admitted in the first place. Staff is expected to facilitate the rights advice, identifying options, and repeat the information as necessary, again identifying reasons for detention.

References

1. RCR, s. 47 (2)
2. Mental Health Act [RSBC 1996] c. 288. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96288_01 [Last accessed January 9, 2016]
3. See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).
4. Ombuds, Best of Care, Finding 101.
5. 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,

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