First Appropriate Bed Policy

Health authorities sometimes give the prospective residents and families the impression that they must accept the first bed in a care facility that becomes available. This is not quite accurate. It does not reflect the letter or spirit of the law, the Model Standards (50) nor Home and Community Care Policy. The Model Standards state:

Prospective residents, families and caregivers are [to be] provided with sufficient information to make a decision about the suitability of the facility.(51)

The Home and Community Care Policy states that health authorities must:

• ensure that residential care services are delivered in compliance with the Residential Care Regulation;
• establish local service delivery models that will provide clients with access to residential care services within their community or within accessible distance to their community.(51)

What is “Appropriate”?

The term “appropriate” is not defined by the Ministry of Health or the health authorities. As a result it is subject to different interpretations. Administratively, a placement may appear medically appropriate if it meets a minimum standard of care, but from a person centred (resident’s) perspective looking at their total wellbeing, it may not. The British Columbia Office of the Ombudsperson stresses “Without a consistent and clear understanding of how the appropriateness of a placement is determined, seniors’ preferences may not be given sufficient weight.” (53)

It is important to recognize that some older adults may have fears about residential care placement generally, as well as legitimate concerns about whether a particular care facility is appropriate to their needs. As legal advocates have pointed out there are many reasons affecting whether or not an applicant or the substitute decides a particular facility is appropriate. These reasons may have nothing to do with how attractive the facility is or its reputation for providing good care. The applicant may decide that a care facility is too far away from a spouse, or partner, family or friends who will want to visit. Cultural or religious preferences may also play an important part in deciding. (54)

The Model Standards identify a number of important considerations which the residents and families should know about the facility prior to admission, including its philosophy of care and pertinent policies on alcohol, smoking, visiting, and use of restraints.(55)

An appropriate location can be one that allows the resident to remain socially engaged, commonly by remaining near the community or area. “Appropriate” should also take into consideration the perspective of those who will be the key contacts for the resident (accessible distance). Location is not necessarily the determining factor, but it can be a prominent one for many older adults, their spouse or partner and their families. It can be particularly important in residential care: the resident who does not have regular contact with family or friends is more likely to be isolated. Isolated residents can be more susceptible to harms, and if these situations occur, the problems can easily go unidentified for a long period of time.

The facility must also have the resources to appropriately support this prospective resident, along with others. (56) For example if the prospective resident has dementia, “appropriateness” means having staff who are well trained in dementia care and understand the needs and behaviours of people with dementia, especially if there has been evidence that the person has “responsive behaviours”.

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“Appropriate” can depend on a prospective resident’s abilities. A resident may have lost the ability to communicate verbally due to dementia, or may have never had the ability to communicate in English. Appropriate may mean the availability of staff who can communicate in that person’s current language in order to provide good personal care, health care and support emotional wellbeing. The importance of appropriate “communication” services in patients accessing publicly funded health care has been recognized by the Supreme Court of Canada. (57)The responsibility to accommodate different prospective and current residents’ needs is described in greater detail in the Chapter Five “Rights, Remedies and Problem Resolution” (Human Rights).

Appropriate placement for an lesbian, gay, bisexual or transsexual (LBGT) senior would be a facility that is “gay friendly”, that feels “safe“ to the resident and the persons that are important to them, that recognizes their relationships, and facilitates inclusive activities- ones in which the LGBT resident feels she or he can participate (“Family Days” become “Family and Friends Days”). (58)

The Effect of Declining an Offered Placement

Turning down a facility has implications, and so does accepting it.

It is increasingly common place for families of hospitalized older adults who need residential care to be told that “You must accept the facility selected. You can apply to transfer to another facility”. They are told if they do not accept, their parent or relative will lose their urgent status, and will be temporarily or permanently removed from the region’s residential care waiting list. (59) As previously noted in some health authorities, people are also informed they must wait at least two months before applying for a transfer. (60) These types of statements and pressures undermine any semblance of people giving “informed consent” to the admission to a facility.

The statements also do not accord with Ministry of Health’s Home and Community Care Policy, which emphasizes among other things, that

“Health authorities must facilitate access to long-term residential care services consistent with the following requirements

• manage access to residential care services and transfers of clients between residential care facilities, based on the preference of the client and the available resources in the community;
• ensure that a client has the opportunity to identify a preferred facility or location;
• manage, in an equitable manner, a client’s transfer to a preferred facility where a client’s request for a preferred facility cannot be met on admission…” (61)

This last requirement is particularly important. Health Authorities note that priority for placement is always given to those “with the highest need” and “at the greatest risk”. (62)

In some cases, older adults in crisis require residential care now. People may decide to try private pay facilities as a short term measure, only to learn that:

• if they “choose” to be admitted to private pay facility privately on a temporary basis, they actually lose their position on the waiting list because from the health authority perspective, they are housed and their needs are being met.

• if they “choose” to pay privately on a temporary basis that does not guarantee the person will be transferred to a subsidized bed in the same building. (63)

The BC Ombudsperson has formally identified these practices as administratively unfair. Health authorities also were not informing residents and families whether the beds in a particular facility in that health region were temporarily funded (subsidized) beds or not, meaning that residents could end up paying unsubsidized rates for the same bed. (64) The BC Ombudsperson recommended that older adults and families be given better information.

Arguably, simply informing a prospective resident about the effects of the decision in advance does not make it any fairer or accord with key aspects of residential care policy. It is illusory to call this informed choice. The information may be there, the choice is not.

The Operator’s Authority to Decline Certain People

Residential care operators note that they sometimes feel under pressure from the Health Authorities to accept any prospective resident being offered by the health authority for admission to the facility. (65) As will be discussed further in Chapter 4 on “Legal Issues When Living in Residential Care “, accepting residents who may be unsafe to live there can sometimes cause safety issues that significantly affect the residents and staff. At the same time, there are responsibilities on public and private operators to reasonably accommodate the needs of prospective and current residents.

The Community Care and Assisted Living Act specifies that as part of the standards to be maintained, the Operator must operate the community care facility in a manner that will promote the health, safety and dignity of persons in care (s. 7(1) (b)). Part of this includes an adequate and fair screening process. See below.

Residential Care Regulations state

46 (1) A licensee may accommodate only those persons who will receive both safe and adequate care in the community care facility.

Admission screening

47 (1) Before admitting a person to a community care facility, a licensee must screen the person to ensure the person will receive both safe and adequate care if admitted to the community care facility.

(2) A licensee must consider, as part of the screening process under subsection (1), all of the following:

(a) the training and experience of employees, the number of employees and patterns of employee coverage;

(b) the design of the community care facility, its construction, and the facilities and equipment within the community care facility;

(c) the needs of the person, including any needs that should be identified specifically in a care plan;

(d) the health, safety and dignity of other persons in care;

(e) any criteria set by, or advice or information from, a funding program.

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

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 law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

Sending legal documents to a party at that party's "address for service," usually by mail, fax, or email, called "ordinary service" in proceedings before the Supreme Court. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."

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."

A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court applicant also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."

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."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

The highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

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."

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."

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

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, (2) a lawsuit, an action, or a cause of action, or (2) the wrongful act of another which gives rise to a claim for relief. See "action" and "cause of action."

In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one guardian "will have the children on Monday, Tuesday, and Friday" but didn’t say anything about the other guardian, the agreement would be constructed to mean that the other guardian would have the children on the days that weren't mentioned.