Directing Residential Care Concerns to Health Authorities
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People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the care is subsidized or not.
Patient Care Quality Office[edit]
Every health region in B.C. has a Patient Care Quality Office. If a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.
Role, mandate[edit]
The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received (58)(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.(59) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).
Scope[edit]
A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?
There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.
Process[edit]
Complaints to the PCQO can be made verbally, in person, by phone or in writing.
The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.
The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. (60) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).
The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.
Available remedies from PCQO?[edit]
The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. (61)
Review of Complaint or Concern[edit]
If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.
Use[edit]
Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices throughout the province in 2012 related to residential care.(62) A 2012 review of the PCQO and PCRB systems noted there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. (63)
Also the legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. (64) The program predominantly serves English-speaking Caucasians. (65) It has been pointed out that the intended focus of the program is unclear– is it on providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? (66)
Patient Care Quality Review Board[edit]
If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.
These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed. The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. (67) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.
Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.
"health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes
- (a) a course of health care, and
- (b) other prescribed services relating to individuals' health or well-being
The Process[edit]
The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.
Who Can Complain[edit]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:
- (a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and (68)
- (b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. (69)
Note: Third Party Consent Form
If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.
Scope[edit]
Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?
Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. (70)
What can a Patient Care Quality Review Board review?[edit]
(71) The boards can review:
- complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
- complaints about services that were expected, but were not delivered by the health authority,
- complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
- matters directed by the Minister of Health.
There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:
- involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
- a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
- a decision of the Community Care and Assisted Living Act Appeal Board. (72)
The Review Board also cannot hear certain matters related to:
- health professionals providing services in private practice,
- health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
- health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.
Residential Care Issues[edit]
Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. (73) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.
Recourse[edit]
The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. (74)The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.
A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. (75) That approach does not address the underlying issue of the quality of care in the facility.
The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.
Volume[edit]
The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.
Community Care Licensing Offices[edit]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.
Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. (76)In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. (77)
Advocacy Points[edit]
Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by
- Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
- Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.
The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.(78)
The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. (79) Fraser Health now states it is conducting these regular inspections for private hospitals. (80)
Complaints against Private Hospitals[edit]
The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. (81)
How Licensing Complaints Are Investigated[edit]
A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.
When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:
- determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
- determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
- prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.
This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps. Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. (82)
If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.
- “Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” (83)
Some examples of licensing conditions include
- requiring a facility to develop a plan to ensure appropriate care,
- requiring a facility to improve its documentation,
- temporarily suspending a facility’s ability to admit new residents,
- requiring a facility to increase the hours of its on-site manager, (84) and
- requiring the facility to have a new manager. (85)
Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.
The Approach: Education and Progressive Compliance[edit]
According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. (86)New facilities are automatically considered high risk because they do not have a track record.
By law, the most recent routine inspection record is required to be accessible to residents and families. (87) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.
Local Ethics Committees[edit]
Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. (88)If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.
The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. (89) Each committee sets its own process.
It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.(90)
The BC Care Aide and Community Health Worker Registry[edit]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.(91) There is also an ongoing responsibility to monitor employees’ performance.(92)
In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.
The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. (93) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.
Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. (94)
The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.
The Process[edit]
Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health. Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. (95) The circumstances are investigated by the Registrar’s office.
The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.
The Challenges[edit]
Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.
Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. (96)
Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).
Directing Concerns to External Bodies[edit]
Police Services[edit]
A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.
Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families. In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. (97)Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.
Police investigations: Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.
Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:
- the client has provided informed consent,
- there is a lawful investigation,
- a court order, search warrant, notice to produce or other lawful instrument has been presented, or
- it is an urgent request (e.g. life and death). (98)
The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.
Information and Privacy Commissioner[edit]
Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.
It should be noted that the Freedom of Information and Protection of Privacy Act (99) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act (100) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.
Human Rights Tribunal[edit]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:
- age,
- physical or mental disability,
- marital status, family status,
- race, colour, ancestry, place of origin,
- sex, sexual orientation
- religion
If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.(101)
The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.
The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.
In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.
It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. (102) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.
Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. (103)This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.
Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. (104) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.
“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.
One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. (105) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.
The Process[edit]
British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. (106)About three to five percent of all complaints received go before the Tribunal. (107)
Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."(108)
The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. (109)Unrepresented complainants have a low chance at success in a hearing.(110)
Help with the Process[edit]
The BC Human Rights Coalition in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. (111)
Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, (112)access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy.
In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. (113)
BC Human Rights Code[edit]
Discrimination in accommodation, service and facility.
8 (1) A person must not, without a bona fide and reasonable justification:
- (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
- (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
International Human Rights[edit]
There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. (114)It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. (115)
Ombudsperson Office[edit]
(116)The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.
Role, mandate, function[edit]
The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can
- respond to inquiries from the public,
- conduct investigations of complaints of individual cases.
The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.
According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. (117)
The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. (118) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. (119) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.
Issues[edit]
A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not
- a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
- a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
- a policy seems to treat some people unfairly,
- a health authority provides operators with objective and enforceable standards of care,
- people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
- a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.
Process[edit]
Complaints to Ombudsperson may be made by a person or group of persons.(120) A complaint must be in writing. (121)The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.
Available remedies[edit]
The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. (122) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.
The Public Guardian and Trustee (PGT)[edit]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating
- the personal care and health care decisions made by a representative or guardian, (123)
- the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. (124)
- adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. (125)
These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.
The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.
The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. (126)
The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. (127) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.(128)
Directing Concerns to Review Boards[edit]
Mental Health Review Board[edit]
As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.
There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. (129) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. (130)
Purpose[edit]
The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. (131) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.
The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.
The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, (132) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Composition[edit]
The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.
Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.
Process[edit]
A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.
Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.
If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.
Remedies[edit]
Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.
Special Note on Treatment[edit]
The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. (133)
Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. (134)
Professional Colleges & the Health Professions Review Board[edit]
If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.
One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.
Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. (135)
For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. (136) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.
Community Care and Assisted Living Appeal Board[edit]
Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. (137)
People other than the operator or licensee can appeal these exemptions. (138) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. (139) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.
Addressing Systemic Concerns: BC Seniors Advocate[edit]
The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. (140)
The Seniors Advocate will be responsible for:
- (a) monitoring the provision of seniors' services,
- (b) analyzing issues believed to be important to the welfare of seniors generally, and
- (c) advocating in the interests of seniors. (141)
The Advocate has authority to:
- (a) identify and analyze systemic challenges faced by seniors;
- (b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
- (c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
- (d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. (142)
Because it is a new office, the specifics of the role of the Advocate will gradually unfold. At this point, the Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Senior’s Advocate may request information from public and private sector service providers, other than personal information.
The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates; the law specifically offers a protection from retaliation for people who give information to the Seniors Advocate. (143)However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.
A Final Note on Rights, Remedies and Problem Resolution[edit]
On its face, residential care has a myriad of mechanisms available to address problems in this area. At the same time, there can be legislative gaps and systems may not function in ways that allow residents or families access to those problem resolution processes. Where there are apparently appropriate laws, public and private bodies always have a choice - to interpret and apply these narrowly and technically (which often leads to inaction), or more hopefully, to interpret them in ways that are supportive of good care for people living in British Columbia’s residential care facilities.
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014. |