Chapter Four Legal Issues in Residential Care References

References

1. Resident Bill of Rights, s. 1.
2. Residential Care Regulations. B.C. Reg. 96/2009 , s. 81 (3).[subsequently be referred to as ”RCR”]
3. RCR, s. 81 (3).
4. RCR, s. 81 (2).
5. RCR, s. 81 (4).
6. RCR, s.81 (4) (b).
7. RCR, s. 1.
8. Representation Agreement Act [RSBC 1996] c.405
9. RCR, s. 1.
10. See Patient Care Quality Review Board, Annual Report, 2010.
11. Section 60 of the Regulations requires the Operator to have a prompt, effective and fair dispute resolution process in place. Plus the Operator is required to ensure no retaliation occurs against the resident.
12. See for example the Coroner Inquiry into the death of Eldon Mooney, where the “natural death” was caused by choking and aspiration. BC Coroner Services. “Coroner Report into the Death of Eldon Mooney”. Case 2011-278-0032. North Vancouver Online: http://www.pssg.gov.bc.ca/coroners/reports/docs/coroners-report-mooney-north-vancouver.pdf [“Coroner Services, Eldon Mooney”] (Last accessed May 1, 2014).
13. RCR, s. 85 (1) (a).
14. RCR, S. 85 (1) (c) (ii.1) and (iii).
15. Law Reform Commission of Saskatchewan. (May 2013). Civil Rights in Saskatchewan Long-term Care Facilities. Final Report, pg. [“ Law Reform Commission of Saskatchewan”]
16. Law Reform Commission of Saskatchewan.
17. RCR, s. 41 (1).
18. RCR, s. 89 (1) and RCR, s. 92 (2).
19. RCR, s. 91 (2) (b).
20. RCR, s. 81 (2) (a). This section identifies the participants as the resident (person in care) or “ if the person in care is not capable of participating, the person in care's parent or representative”
21. RCR, s. 81.
22. RCR, 81 (4) (b).
23. Guide for Vancouver Coastal Health and Providence Health Care owned and contracted residential care facilities. Tools for enhancing resident and family involvement in residential care facilities, pg. 23 [“Guide Toolkit”]. Resident/Family Involvement. VCH Community Engagement.Sept.2011
24. RCR, s. 50 (1) and (2).
25. RCR, s. 50 (1) and (2).
26. This has consistently been shown in British Columbia, across Canada and the United States. See for example: Alamgir, H., Yu, S., Chavoshi, N. & Ngan, K. (2008). Occupational injury among full-time, part-time and casual health care workers. Occupational Medicine, 58(5), Pg. 348-354.Also: MacPhail, F. & Bowles, P. (August 2008). Improving the economic security of casual workers in BC. Canadian Centre for Policy Alternatives. Online: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC_Office_Pubs/bc_2008/CCPA_casual_workers_full.pdf (Last accessed May 1, 2014).
27. Ombuds Best of Care, pg. 254-6.
28. RCR, s. 42 (1).
29. McGregor, M.J., Tate, R.B. Ronald, L.R. McGrail, K. M. et al. (2010). Trends in long-term care staffing by facility ownership in British Columbia, 1996 to 2006. Health Reports, 21 (4), Statistics Canada. Cat. 82-0003 X.
30. RCR, s. 42 (2).
31. RCR, 42 (3).
32. See for example, BC Coroner Services, Eldon Mooney.
33. RCR, s. 9.
34. Ombuds, Best of Care, Finding 137, Recommendation 169.
35. Cornish, M. & Pickel, J. (November 2007). Legal opinion: validity of continence care practices and policies in long term care homes. Online http://ofl.ca/wp-content/uploads/2007.11.19-Report-LongTermCare.pdf ( Last accessed May 1, 2014) [ “Cornish & Pickel”]
36. Ombuds, Best of Care, p. 259.
37. Cornish & Pickel.
38. Ombuds, Best of Care.
39. See: Ministry of Health. Community Care Facilities Licensing Branch. Choosing a care facility or home guide. Online: http://www.health.gov.bc.ca/ccf/publications/com031.pdf (Last accessed May 1, 2014).Also: Vancouver Coastal Health (June 2013). Information on residential care. Online: http://www.vch.ca/media/Introduction-to-Residential-Care-Handbook-June-2013.pdf ( Last accessed May 1, 2014).
40. Some falls may occur as a result of resident conflict (a resident being pushed by another resident)
41. Capezuti, E., Evans, L., Strumpf, N., & Maislin, G. (June, 1996). Physical restraint use and falls in nursing home residents. Journal of American Geriatrics Society, 44(6), 627-33.
42. Luo, H., Lin, M., & Castle, N. (Feb. 2011). Physical restraint use and falls in nursing homes: a comparison between residents with and without dementia. American Journal of Alzheimer’s Disease and Other Dementias, 26(1), p. 44-50. Also: Tang, W., Chow, Y., & Koh, S. (2012). The effectiveness of physical restraints in reducing falls among adults in acute care hospitals and nursing homes: a systematic review. JBI Library of Systematic Reviews, 10(5), 307 – 351.
43. Iyer, P.W. (ed.) (2006). Nursing Home Litigation: Investigation and Case Preparation. (2nd. Ed.) Lawyers & Judges Publishing Company, pg. 372.
44. Law Reform Commission of Saskatchewan, pg. 2.
45. Criminal Code of Canada, R.S., 1985, c. C-46 s. 279 (2). s. 279 Forcible confinement…
    1. Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
       1. (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
       2. (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. Non-resistance
    2. (3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
47. RCR, s. 9 (1) and (2).
48. Ombuds, Best of Care, Finding 139 and Recommendation 171.
49. Ministry of Health Home and Community Care Policy Manual. Chapter: 6 Residential Care Services Number: 6.J- Movement of Clients – Facility Closures Or Renovations [Effective: October 15, 2012]
50. See letter from Fraser Health to BC Care Providers Association. Online: www.bccare.ca/wp-content/uploads/ResponsefromNMurrayFHAApril2014.pdf (Last accessed May 1, 2014).
51. BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 1, 2014). [“Best practice guideline for dementia “]
52. Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
53. Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 1, 2014). [ “BC anti-psychotic drug review”]
54. BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
55. BC anti-psychotic drug review, pg. 8 and 9.
56. BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 1, 2014)
57. Best practice guideline for dementia.
58. Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
    1. (a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises;

"premises" means land, … and anything on the land including… (a) a building or other permanent structure,

1. 1. 1. NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
2. RCR, s. 57 (1).
3. RCR, s. 57 (2).
4. Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
5. Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 1, 2014). [“Ministry of Health Policy Communiqué.”]
6. Ministry of Health Policy Communiqué.
7. BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
8. RCR, s.60 (b).

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

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

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."

A legal right to have and use a thing that is enforceable in court. See "possession."

In law, (1) a lawyer's advice to their client, (2) a lawyer's analysis of a legal problem, or (3) the views of an expert on an issue in an action. See "expert evidence" and "opinion evidence."

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."

Conduct that is permitted both by the law. See "unlawful."

(1) A reply, a rebuttal, an answer to a court proceeding or an application, or (2) a statement as to why a particular claim or application should not succeed.

Forcing someone to do something through psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or apply to set aside that agreement.

(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."

Real property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession."

Something which can be owned. See "chattels" and "real property."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."