Introduction and Forward to Legal Issues in Residential Care

Introduction

Each year, approximately 38,000 adults in British Columbia will live in a residential care facility. For most it will become their home for the last months or years of their lives.

The residents living in British Columbia’s care facilities today are generally older, more disabled and closer to the end of life than residents were a decade ago. Many will be frail and the vast majority will be aged 85 and over. It is estimated that about eighty percent of the people living in British Columbia’s residential care facilities have dementia, although the degree of impairment can vary considerably from person to person.

Residents in British Columbia’s care facilities are often treated as if they are all the same. From one narrow perspective they may be - they have experienced major changes in their health and social circumstances where their needs typically can no longer be met in the community with the support of their spouse or partner, family, friends or neighbours, through formal services, or in other types of housing settings. However, they are also a very diverse group of individuals. Each person remains very much an individual, each with very different lived experiences. Each resident has their own preferences, values, beliefs, and interests.

A residential care facility is the person’s home, as well as where others work. It is a collective setting, in which the rights of individuals must be balanced against the rights of other residents living there, as well as the rights and responsibilities of the staff and administration.

Residential care is a complex area. Many laws shape and affect the residents’ lives in this collective setting. There can be regional differences in policy, as well as differences in the way the law has been interpreted and applied in various parts of British Columbia. Providers may operate facilities in a number of other jurisdictions in Canada or United States, and that may affect their expectations, contracts, and way of working.

This is also an area of constant change, as the area responds to new emerging issues, often with legal implications for the residents, friends, family and the staff who work in the care facilities. This manual describes some of the laws that set out the responsibilities of providers and rights of residents, helping to clarify some common misunderstandings along the way. As an introductory text, it largely focuses on how systems work in the context of the Community Care and Assisted Living Act and the Residential Care Regulations.

This e-book describes the key legal issues related to residential care in British Columbia, along with the appropriate processes and available legal or administrative remedies. It is written in the midst of change, recognizing that a number of important changes to residential care are currently under development.

The focus of the book is specifically on all the licensed residential care facilities, extended care facilities and private hospitals in British Columbia. It does not cover legal issues related to assisted living or home support, although we recognize the importance of those areas.

Acknowledgements: Development and Review of the E-Manual

In developing this e-manual we have drawn on the knowledge and experience of key stakeholders in health care and law, government agencies, community groups, family councils and in some cases residents themselves. These people have allowed us to identify key issues, content, and resources.

This e-manual is based on an approach first used by the Advocacy Centre for the Elderly (ACE) in Toronto, Ontario where their manual became a practical information tool useful to many stakeholders. We would like to thank ACE for the initial idea of creating the e-book as well as their support. We have drawn on their quarter century experience in legally advocating on behalf of older adults in long term care settings.

The BC Centre for Elder Advocacy and Support thanks all those individuals and organizations that generously gave their scarce time to participate in the review of the manual. Their comments and responses helped shape the final content. The special efforts given by lawyers Heather Campbell, Kevin Smith (BCCEAS), and Krista James (Canadian Centre for Elder Law) have been greatly appreciated.

We also benefited from the insights and support of advocacy staff at the Alzheimer Society of British Columbia, Al Jina (Park Place Seniors Living), Kim Slater and the Vancouver Island Association of Family Councils, and Sherry Baker, BC Association of Community Response Networks.

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."