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.

Target Audience

This advocate’s manual is intended as a primary resource for legal staff at the BC Centre for Elder Advocacy and Support (BCCEAS) in serving individual clients. It will also be useful to advocates and professionals in the legal and health care systems who also want to support residents in the best manner possible. The-book will be updated on an ongoing basis.

The e-book will be available on the BCCEAS website, with live links to sources of non-legal information (e.g., health authorities and other government resources) and to resources such as residential care family councils, senior-serving community organizations, and professional associations.

Scope

The focus of this e-book is on:

a) licensed residential care for adults–including the for profit and not for profit care facilities, private hospitals, and extended care hospital beds.

b) legal issues in these facilities-which includes policies, procedures, regulations, laws, any administrative review or appeal processes.It is not intended to be a comprehensive statement of the law, but a useful foundation.

The e-book begins with an overview of the statutory framework for residential care facilities and residents’ rights declarations. The subsequent chapters focus on five key areas of law in residential care:

• Legal issues related to admission and transfer - such as the admission process, and transfer from hospital or other settings, consent to move into a residential care facility (particularly where the prospective resident has diminished capacity), use of the Mental Health Act as a transfer mechanism; the care plan and the contract, and responsibility for fees.

• Legal issues arising while living in residential care - which includes for example, residents’ rights, standards of care, professional care, informed consent, inappropriate use of physical and chemical (medication) restraints, resident safety (including preventing harm from other residents), abuse and neglect, control over residents, control over access to residents (visitors).

• Rights, remedies and problem resolutions - how to resolve problems: civil and administrative remedies, enforcement, mandatory reporting, complaints, and criminal law.

• Capacity & consent - treatment and personal care decisions, use and misuse of advance care planning, consent in the context of physical and chemical restraints in care facilities, and improving understanding about the requirements of consent.

• Substitute decision-making including the use of power of attorney, advance directives, and representation agreements in residential care.

Language and Perspective

The manual takes a client-centred, advocacy perspective to describe and understand the common legal matters affecting people who live in residential care facilities, as well as those who care about and support them.

In this area, statutes may refer to people as “persons in care”, “patients”, “clients”, or “residents”. Throughout this manual we use the term “resident” and “person” interchangeably.

Occasionally the term “older adult” or “senior” will be used unless the context otherwise warrants. We use the generic term “operator” to cover the wide range of public, private, for profit and not for profit care facility licensees, owners and operators who provide care and support to older adults in residential care facilities, including private hospitals and extended care hospitals.

Viewing Residential Care in the Context of Elder Law

Some of the laws and regulations identified in the manual such as the Community Care and Assisted Living Regulation regulate care facilities for persons with chronic or progressive conditions, primarily due to the ageing process. The same laws also apply to and regulate facilities for also a wider group of people receiving care. This includes facilities providing hospice (palliative) care, homes for people with developmental disabilities or acquired brain injury and facilities for people with substance abuse or mental disorders. The focus in this manual, however, will largely be on seniors who make up the vast proportion of the resident population in the care facilities.

Throughout the text we focus on specific aspects of law. Some sections will describe a range of legal issues related to documents such as power of attorney, but in the specific context of life and issues in residential care facilities. These sections are not intended to be comprehensive statements of law on those documents.

Our Sincere Thanks

This project was made possible with financial support of the Law Foundation of British Columbia. The BC Centre for Elder Advocacy and Support gratefully acknowledges the Foundation for its generous support of this work.

Disclaimer

This material contains information and guidance for practice. We have taken considerable effort to reflect the law, policy and practice as accurately as possible in this complex area. However, there can be minor differences in interpretation, plus law, policy and practice in this area are constantly changing. We also recognize that some important sources such as the Ministry of Health’s Home and Community Care Policy Manual are currently under review.

The information is not legal advice. All material provided is current as of May 31, 2014. Any changes to the law or policy after May 31, 2014 are not reflected in these materials.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 20, 2014.

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."

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."

(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

An application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. See "appellant" and "respondent."

In property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

In law, something that is relevant or important. A material fact, for example, is a fact relevant to a claim or a defence to a claim. See "claim," "evidence" and "fact."

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."