Six Pressing Issues when Living in Residential Care

Medications

Families often express concerns that antipsychotic drugs and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions.

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

a) matters of fact - Is the particular medication appropriate for this individual? and

b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative.

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

• focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
• look at risks compared to the benefits of various options,
• try out different kinds of potentially more effective approaches, and less risky interventions, plus
• focus on informed consent prior to treatment.

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

Health Care Consent: A Quick Overview

1. Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable).
2. If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment.
3. Consent must be specific to the treatment being proposed.
4. Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek.
5. Voluntary, informed, consent from a capable adult must be sought except in particular circumstances.

- A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11

Control Over Visiting

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.

The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).

The law and visiting

The care facility is the resident’s home. Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. The resident has a right to control access to his or her room (much like a tenant) and the operator or staff has a broad right to control access to premises.

The resident’s right to visitors is also very clearly identified within the Residential Care Regulations and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to … to receive visitors and to communicate with visitors in private.” Sections 57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

• “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.”
• “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time."

The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

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

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

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 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.

An act; a statute; a written law made by a government. See "regulations."

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."

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 law, (1) the physical railing separating the public gallery in a courtroom from the area where the judge and lawyers sit, (2) lawyers as a group, or (3) the place where lawyers go after work.

(1) In real property law, a piece of property and a building situated on it, usually including the area of the property surrounding a building on that property. (2) In law generally, a premise is an assumption that founds a logical argument. See "argument" and "real property."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."