Chapter Six Legal Issues in Residential Care References

References

1. ACE (2004). Advocacy Centre for the Elderly. Long-Term Care Facilities in Ontario: The Advocate's Manual. Chapter 7 Decision Making , page 7.7 [“ACE: Decisionmaking”]
2. Capacity to grant or revoke power of attorney. Online : http://whaleyestatelitigation.com/blog/2008/11/capacity-to-grant-or-revoke-power-of-attorney/
3. ACE: Decisionmaking, p. 7.8 and 7.9.
4. ACE: Decisionmaking.
5. Desormeaux v. Kicz (7 July 2000), Court File No. A-8757/2000 (Ontario Superior Court of Justice) at par.17.
6. Adult Guardianship Act, [RSBC 1996] c. 6, [“AGA”]
7. Representation Agreement Act [RSBC 1996] c. 405. [ “RRA”]
8. AGA, s. 3 (1)
9. Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181, s. 3. [“HCCCFA”].
10. Power of Attorney Act [RSBC 1996] c. 370.
11. BC Law Institute (2013). Report on Common Law Tests of Capacity, BCLI Report. No. 73. p. 13-16. Online: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf (Last accessed: May 1, 2014) [“BCLI Capacity”]
12. HCCCFA, s.3 (2). Also AGA, s. 3 (2) specifically notes “An adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about [the adult's personal care, health care and financial affairs].
13. HCCCFAA, s.8.
14. HCCCFAA, s.8 (a) and (b).
15. O’Connor, D. (2009). Assessing incapacity: review of tools. Public Guardian and Trustee, page 10. Online : http://www.trustee.bc.ca/pdfs/STA/Incapability_Assessments_Review_Assessment_Screening_Tools.pdf Last accessed: March 9, 2014 [“O’Connor”]. O’Connor notes that unlike some jurisdictions, the notion of ‘appreciation’ is not actually used in BC’s health care consent law. However, the ideas underpinning it are arguably captured in the standard that the person recognizes that the information applies to him or her.
16. O’Connor, p. 10
17. O Connor, p. 10.
18. O’Connor, p. 3.
19. O’Connor, p. 25.
20. O’Connor, p. 9.
21. HCCCFAA, s. 5.
22. HCCCFAA, s. 3.
23. HCCCFAA, s. 10.
24. HCCCFAA s.9 (2).
25. Health Care Consent Regulation. B.C. Reg. 20/2000, s. 3 (c ) and 3 (i) . See Health Professions Act RSBC 1996, c. 183.
26. B.C. Reg. 20/2000, Health Care Consent Regulation.
27. Online: http://bchealthregulators.ca/#list-of-colleges (Last accessed: May 1, 2014)
28. HCCCFAA, s. 1.
29. Cuthbertson v. Rasouli [2013] S.C.J. No. 53; [2013] A.C.S. no 53; 2013 SCC 53; 310 O.A.C. 19; 449 N.R. 313; 2013 EXP-3330; J.E. 2013-1818; 5 C.C.L.T. (4th) 1; 364 D.L.R. (4th) 195; 2013 Carswell Ont 14113
30. HCCCFAA, s. 4
31. Nidus. Your rights and the law. Online: http://nidus.ca/PDFs/Nidus_Info_HCC_Your_Rights_and_the_Law.pdf (Last accessed: May 1, 2014). [“Nidus, Rights”]
32. Nidus, Rights.
33. Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165.
34. Ministry of Health. (2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities. Page 8. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed: May 1, 2014). [“Antipsychotic drug review”]
35. Antipsychotic drug review, pg. 8.
36. Residential Care Regulation, B.C. Reg. 96/2009, s. 1 defines "restraint" as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit”. [“RCR”]
37. RCR, Division 5, “Use of Restraints” s. 73- s.75, and s. 84.
38. Adult Guardianship Act , s. 1 “"abuse" means the deliberate mistreatment of an adult that causes the adult (a) physical, mental or emotional harm, or (b) damage or loss in respect of the adult's financial affairs, and includes … overmedication, withholding needed medication, …
39. BC Ombudsperson. The Best of Care: Getting It Right for Seniors in British Columbia (Part 1), p. 284. [“Ombuds, Best of Care, Part 1”]
40. Ministry of Health. (2012) Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care- a person-centered interdisciplinary approach. Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed: May 1, 2014). [“Dementia Guideline”]
41. Dementia Guideline, p.12-13
42. Dementia Guideline, p.13.
43. Mental Health Act, [RSBC 1996] c. 288.
44. Antipsychotic drug review, page 21.
45. The Residents Bill of Rights notes under “Commitment to care” that “An adult person in care has the right to a care plan developed: (a) specifically for him or her, and (b) on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.”
46. S. 81(3) of the RCR note that the care plan needs to address ten areas : medication, “behavioural intervention”; use of restraints; oral health care; nutrition (including therapeutic diets); recreation and leisure; fall prevention; “elopement risk”; any condition or requirement associated with the resident’s admission to the community care facility under the Mental Health Act.
47. HCCCFA defines "representative" in this manner means a person authorized by a representation agreement to make or help in making decisions on behalf of another and includes an alternate representative. This would seem to limit the support for anyone who does not have a representative under the Representation Agreement Act. However as noted,
48. Nothing in this regulation confers on the person any greater authority to make health or personal care decisions than the person has under those Acts or an agreement under the Representation Agreement Act.
49. The Residents Bill of Rights notes under “Commitment to care” that “An adult person in care has the right to a care plan developed: (a) specifically for him or her, and (b) on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.”
50. Antipsychotic drug review, pg. 18.
51. Some of these examples are from the Antipsychotic drug review.
52. Ombuds, Best of Care, Part 1.
53. ACE: Decisionmaking,
54. ACE : Decision Making.
55. Ministry of Health. (July 18, 2012) Advance care planning - frequently asked questions. Online: http://www2.gov.bc.ca/assets/gov/topic/2038E757D68E49D5DC8C3CD0061E8E1B/pdf/faqadvancecareplanning.pdf (Last accessed: May 1, 2014).
56. AGA, s. 3 (1)
57. Health Care (Consent) and Care Facility (Admission) Act, s. 19.91.
58. Wahl, J., Dykeman, M.J., & Gray, B. (January 2014). Health Care Consent And Advance Care Planning In Ontario- Legal Capacity, Decision‐Making and Guardianship. Commissioned by the Law Commission of Ontario, p. 203 and 205. Online: http://www.lco-cdo.org/capacity-guardianship-commissioned-paper-ace-ddo.pdf [“ACE_ LCO”] (Last accessed: May 1, 2014).
59. HCCCFA, s. 19.91.
60. ACE_ LCO, p. 205.
61. While advance directive can be directly relied on by physicians in British Columbia, they have to ascertain whether the advance directive applies in the situation, and if the advance directive is part of a representation agreement, the representative may be the interpreter.
62. Fraser Health. Medical Orders for Scope of Treatment (MOST) and Advance Care Planning (ACP). [Date Approved: June 13, 2012.]
63. Malpas, P.J. (May, 2011). Advance directives and older people: Ethical challenges in the promotion of advance directives in New Zealand. Journal of Medical Ethics: Journal of the Institute of Medical Ethics. 37(5). pp. 285-289.
64. Representation Agreement Act [RSBC 1996] c. 405, s. 1 [“RRA”]
65. See for example, RCR, Schedule D. "physical abuse" means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
66. AGA defines "neglect" as “any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect.
67. Rosen, T. Lachs, M.S. Pillemer, K. (2010). Sexual aggression between residents in nursing homes: literature synthesis of an under-recognized problem. Journal of the American Geriatrics Society, 58, 1070–1079.
68. See for example, Ramsey-Klawsnik, H. & Teaster, P.B. (2012). Sexual abuse happens in healthcare facilities—what can be done to prevent it? Generations, 36 (3), 53- 61.
69. See for example: McSherry, B. & Somerville, M.A. (1998). “Sexual activity among institutionalized persons in need of special care” 16 Windsor Year Book. Access to Justice, 90 -139; Vancouver Coastal Health. (2009). Supporting sexual health and intimacy in care facilities: guidelines for supporting adults living in long-term care facilities and group homes in British Columbia, Canada. Online: http://www.sfu.ca/uploads/page/04/FacilitiesLicensing_SupportingSexualHealthandIntimacyinCareFacilities2.pdf [“Vancouver Coastal Health, Sex.”] (Last accessed: May 1, 2014) .
70. Vancouver Coastal Health, Sex.
71. Vancouver Coastal Health. Sex, p. 19.
72. Vancouver Coastal Health. Sex, p. 19.
73. Vancouver Coastal Health. Sex, p. 19.
74. R. v. J.A. 2011 SCC 28.
75. Criminal Code (R.S.C., 1985, c. C-46)

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."

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 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.