Introduction, Chapter One and Two of Legal Issues in Residential Care References

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Legal Issues in Residential Care:
An Advocate's Manual
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Legal Issues in Residential Care: An Advocate's Manual.
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Introduction
Introduction and Forward
Acknowledgements
Chapters
Chapter Resources and Appendices
Chapter One Resources and Appendix
Chapter Three Resources and Appendix
Chapter Four Resources and Appendix
Chapter Five Resources and Appendix
Chapter Six Resources and Appendix
Chapter Seven Resources and Appendix
From
BC Centre for Elder Advocacy and Support ‎
v • d • e

References[edit]

  1. McGregor, M.J., Tate, R.B., Ronald, L.A. et al. (December 2010).Trends in long-term care staffing by facility ownership in British Columbia, 1996 to 2006. Health Reports, 21 (4). Statistics Canada. Catalogue no. 82-003-X.
  2. Community Care and Assisted Living Act [SBC 2002] c. 75. [“CCALA”]. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_02075_01. (Last accessed May 1, 2014).
  3. Residential Care Regulations, B.C. Reg. 96/2009 (as amended). [“RCR”] Online: http://www.bclaws.ca/Recon/document/ID/freeside/96_2009 (Last accessed May 1, 2014).
  4. British Columbia. Office of the Ombudsperson. The best of care. Getting it right for seniors in British Columbia (Part 2). Public report no. 47 to the Legislative Assembly of British Columbia, [page. 206]. [ This publication will subsequently be referred to as the “Ombuds, Best of Care”.]
  5. These are sometimes referred to as “hospitality services””
  6. CCALA, s. 2.
  7. Community Care and Assisted Living Regulation. B.C. Reg. 217/2004 [O.C. 476/2004]. s. 2 [Subsequent reference will be “CCALA Regulation”]. Online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/217_2004. (Last accessed May 1, 2014).
  8. CCALA Regulation. Also, CCALA, s. 1 See definition of “Community care facility”. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_02075_01. (Last accessed May 1, 2014).
  9. There is an exception in the law when the spouse is living with the person.
  10. Ministry of Health Home and Community Care Policy Manual, Chapter: 6 Residential Care Services (Section 6.D : Access to Services (October, 15, 2012) [Subsequent reference will be “H&CC Policy Manual”]
  11. More recent information from the Ministry of Health identifies that there are 361 residential care facilities in the Province. See: http://www.bccare.ca/bccpa-hosts-fire-safety-meeting/
  12. Ombuds, Best of Care, pg. 204.
  13. Hospital Act [RSBC 1996] c. 200. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96200_01 (Last accessed May 1, 2014).
  14. Ombuds, Best of Care, pg. 203.
  15. Vancouver Coastal Health. (n.d.) Information on Residential Care. p. 3. This guide is available online at : www.vch.ca (Last accessed May 1, 2014) [ “Vancouver Coastal Health, Information”]
  16. Vancouver Coastal Health, Information.
  17. Ombuds, Best of Care, pg. 205.
  18. BC Ministry of Health. Home and Community Care. Long Term Residential Care. Online: http://www2.gov.bc.ca/gov/topic.page?id=4FEC0F570BC04692810548267D09577E&title=Long-Term%20Residential%20Care (Last accessed May 1, 2014)
  19. BC Ministry of Health, ibid.
  20. H&CC Policy Manual. Chapter: 6 Residential Care Services (Section: F Benefits And Allowable Charges), BC Ministry of Health. Home and Community Care. “Who pays for care? Temporary reduction of your client rate.” Online: http://www2.gov.bc.ca/gov/topic.pageid=4A29582816F3497C85765E1943A25C6A&title=Temporary%20Reduction%20of%20Your%20Client%20Rate (Last accessed May 1, 2014).
  21. BC Office of the Ombudsperson. Update on Status of Recommendations. The Best of Care: Getting It Right for Seniors in British Columbia (Part 2) Public Report No. 47. Recommendation 47.
  22. However even where there are restrictions, some health authority operated care facilities may exceed the double occupancy restrictions.
  23. The standards are on hygiene, recreation opportunities, emergency preparedness, nutrition and the administration of medication, for example.
  24. RCR, Division 2 to 5.
  25. CCALA, s. 7 (1)(c.1)(ii).
  26. As identified in s.4 (3) (a) of the Hospital Act [RSBC 1996] c. 200..
  27. E.g. for bedrooms, bathrooms, temperature and lighting
  28. CCALA, Part 2.
  29. Under Hospital Act, Part 2, s.6.
  30. To their local licensing office and their funding body, as well as to the affected resident’s family and the resident’s family doctor.
  31. The Ombuds, Best of Care, pg.208 notes that the Vancouver Coastal Health Authority is the only exception. It has been inspecting private hospital facilities under the Hospital Act regularly since September 2007.
  32. As of April 2013, all health authorities now provide online access to summary inspection reports for Hospital Act facilities. These reports can be accessed through the ministry’s Home and Community Care website (www.gov.bc.ca/hcc ) under the Accountability section.
  33. CCALA, s.22.
  34. CCALA facilities are required only to ensure that either a medical or nurse practitioner can be contacted in an emergency. However the funding agreement with the health authority may require a registered nurse to be on site.
  35. People who live in either CCALA facilities or in private hospitals typically have their prescription costs covered by PharmaCare’s Plan B, but they must pay for their own non-prescription drugs.
  36. Vancouver Island Health Authority. VIHA. “ Residential care Services” Online: http://www.viha.ca/hcc/residential/ (Last accessed May 1, 2014).
  37. For a description of how this occurs, see: (2008) Personal Assistance Guidelines. Ministry of Health Services. Online: http://www.health.gov.bc.ca/library/publications/year/2008/Personal_Assistance_Guidelines.pdf
  38. Howe Group Public Sector Consultants. (January 2011). Planning, attracting, engaging, and sharing knowledge: - a human resource strategy for the community health workers, residential care aides and licensed practical nurses in BC’s private and not-for-profit seniors care sector. Pg. 7 Online: http://www.bccares.ca/pdf/HR%20Report%20Final%20Version%20-%20Jan%2011.pdf [“ Seniors Care HR Sector Committee”} (Last accessed May 1, 2014).
  39. Seniors Care HR Sector Committee, ibid. pg. 14.
  40. Seniors Care HR Sector Committee, ibid. pg. 7.
  41. BC Care Aide & Community Health Care Worker Registry. Existing Health Care Assistant (HCA) Programs – British Columbia Important Dates - Registry Program Recognition. Online : http://www.cachwr.bc.ca/getattachment/Educators/Existing-HCA-Programs-Important-Dates.pdf.aspx (Last accessed May1, 2014)
  42. Ibid.
  43. Seniors Care HR Sector Committee, ibid. pg. 8.
  44. Seniors Care HR Sector Committee, ibid. pg. 8-9.
  45. Seniors Care HR Sector Committee, ibid. pg. 16.
  46. Ombuds, Best of Care, pg. 294.
  47. BC Care Aide & Health Worker Registry. Online: http://www.cachwr.bc.ca/Home.aspx (Last accessed May 1, 2014) [“Registry”]
  48. Seniors Care HR Sector Committee, pg. 8.
  49. Registry. “Removal from the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry/Ensuring-Public-Safety/Removal-from-the-Registry.aspx (Last accessed May1, 2014)
  50. Health Professions Act [RSBC 1996] c. 133.
  51. College of Registered Nurses of British Columbia. Online: https://www.crnbc.ca/Pages/Default.aspx (Last accessed May1, 2014).
  52. Criminal Records Review Act [RSBC 1996] c. 86. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96086_01 (Last accessed May1, 2014).
  53. Ombuds, Best of Care, R94, pg. 211.
  54. Ombuds, Best of Care, pg. 210.
  55. CCALA.
  56. RCR.
  57. Ombuds, Best of Care, pg. 203.
  58. RCR. Part 4, Division 1 (General Staffing Requirements) and Division 2 (Coverage and Necessary Staff), s. 37-46.
  59. RCR, Part 5, Division 1, s. 46-50.
  60. RCR, Division 2, s. 51-61.
  61. RCR, s. 82.
  62. RCR, s. 62-65.
  63. RCR s. 68-72.
  64. RCR s. 73-75.
  65. RCR, Division 6, s. 76-77, and Schedule D of RCR.
  66. RCR, s. 85(1).
  67. RCR, s.81 (3)(e).
  68. RCR, s. 18.
  69. RCR, Part 3, Division 1.
  70. RCR, s. 17.
  71. RCR, s.69(1).
  72. For example: RCR s. 7, 21, 25, 26, 29, 30, 42, 47, 53, 57, 73, 78, 93.
  73. RCR, s. 21.
  74. RCR, s. 42(1).
  75. RCR, s. 59.
  76. RCR, s. 37(1).
  77. RCR, s. 37(1).
  78. RCR, s. 37, s.38.
  79. RCR, s.40 (1).
  80. RCR, s. 77(1).
  81. RCR, Schedule D.
  82. Order in Council 409, September 26, 2013. See also: Residential Care Regulation and Child Care Licensing Regulation Amendment to Reportable Incidents.
  83. RCR, Schedule D.
  84. RCR, s. 56 (3).
  85. Hospital Act [RSBC 1996] c. 200.
  86. Ombuds, Best of Care, pg. 296.
  87. This is an official in the Ministry of Health Services.
  88. Ombuds, Best of Care, pg. 211.
  89. Ombuds, Best of Care, pg. 210.
  90. Hospital Act [RSBC 1996] c. 200.
  91. B.C. Reg. 25/61[O.C. 315/61] Hospital Insurance Act. Hospital Insurance Act Regulations
  92. Hospital Insurance Act Regulations, BC Reg. 25. 61. (as amended). Online : http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/25_61
  93. Mental Health Act [RSBC 1996] c. 288. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96288_01 (Last accessed May 1, 2014).
  94. Adult Guardianship Act [RSBC 1996] c. 6 {“AGA”}
  95. AGA, s. 44 states “The purpose of this Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of
    1. (a) physical restraint,
    2. (b) a physical handicap that limits their ability to seek help, or
    3. (c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.”
  96. Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181. Online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96181_01#section20t26 . Or Online - http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01 (Last accessed May1, 2014).
  97. Mental Health Act.
  98. Ombuds, Best of Care, pg. 265-268
  99. Power of Attorney Act [RSBC 1996] c.370. Online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_08028_01 (Last accessed October 29, 2013)
  100. Public Guardian and Trustee Act [RSBC 1996] c. 383. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96383_01 (Last accessed May 1, 2014).
  101. PGT Act.
  102. Representation Agreement Act [RSBC 1996] c.405. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96405_0 (Last accessed May 1, 2014).
  103. Patient Property Act [RSBC 1996] c. 349. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96349_01
  104. Office of the BC Ombudsperson. (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults., Public #Report No. 49, at pg. 49. Online: http://www.ombudsman.bc.ca/resources-and-publications/investigative-reports/public-reports (Last accessed May 1, 2014).
  105. Personal Information Protection Act [SBC 2003] c. 63. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_03063_01 (Last accessed May 1, 2014).
  106. Freedom of Information and Protection of Privacy Act [RSBC 1996] c. 165. Online: http://www.bclaws.ca/Recon/document/ID/freeside/96165_00 (Last accessed May1, 2014).
  107. Veterans Benefit Act (R.S.C. 1970, c. V-2) Online: http://laws-lois.justice.gc.ca/eng/acts/V-1.3/index.html (Last accessed May 1, 2014).
  108. Immigration and Refugee Protection Act (S.C. 2001, c. 27). Online: http://laws-lois.justice.gc.ca/eng/acts/i-2.5/index.html (Last accessed May 1, 2014).
  109. For a general discussion of sponsorship issues, see : Koehn, S. Spencer, C, & Hwang, E. (2010) Promises, promises: cultural and legal dimensions of sponsorship for immigrant seniors. Diversity in Aging among Immigrant Seniors in Canada, Temeron Books, Calgary. Note that the length of sponsorship has now increased from 10 years to 20 years.
  110. Ministry of Health. “Community Care Licensing.” Online: http://www.health.gov.bc.ca/ccf/ (Last accessed October 29, 2013). [“Community Care Licensing”]
  111. Public Health Act [SBC 2008] c. 28. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_03063_01
  112. Community Care Licensing.
  113. Ministry of Health. Inspection and Complaint Reports. Online: http://www.health.gov.bc.ca/ccf/facility-inspection-reports.html (Last accessed May 1, 2014). Also: Interior Health. Risk Assessment Tool for Community Care Facilities Licensing. Letter to all Licensed Care Providers, June 25, 2012.
  114. Patient Care Quality Review Board Act (S.B.C. 2008, c.35). Online : http://qp.gov.bc.ca/38th4th/3rd_read/gov41-3.htm (Last accessed May 1, 2014).
  115. Ministry of Health. Community Care Licensing. Online: http://www.health.gov.bc.ca/ccf/ (Last accessed May1, 2014).
  116. Human Rights Code [RSBC 1996] c. 210. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96210_01 (Last accessed May1, 2014).
  117. HRC, s. 8(1)
  118. HRC, s. 8(1)
  119. Ministry of the Attorney General (January 2008). Human Rights in British Columbia. “Harassment”
  120. Human Rights Code, s. 8(1)
  121. Ombudsperson Act [RSBC 1996] c. 340. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96340_01 (Last accessed October 29, 2013)
  122. Constitution Act, 1982 (PART I) Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.). Online: http://www.canlii.org/en/ca/const/const1982.html (Last accessed May1, 2014).
  123. Criminal Code of Canada, R.S.C., 1985, c. C-46. Online : http://laws-lois.justice.gc.ca/eng/acts/C-46/ (Last accessed May1, 2014).
  124. C.C.C. s. 215 “Failure to provide necessaries of life”. L. Romano points out most s. 215 cases deal with neglect in the community. See L. Romano (Fall 2009). “Elder abuse: failing to provide the necessaries of life to older adults is a crime. Advocacy Centre for the Elderly Newsletter. Online: http://www.advocacycentreelderly.org/appimages/file/Failing%20to%20Provide%20the%20Necessaries%20of%20Life%20is%20a%20Crime.pdf (Last accessed May 1, 2014)
  125. In this case, a prisoner was killed in a correctional facility in Ontario after staff decided to put him in a cell with a violent offender. J, O'Brien &, R. Richmond, Wednesday, March 5, 2014 “Corrections officers at Elgin-Middlesex Detention Centre charged for failing to provide necessaries of life”, The London Free Press.
  126. Family Law Act, [SBC 2011], c. 25.
  127. Business Practices and Consumer Protection Act. SBC [2004] c. 2. Online: http://www.bclaws.ca/Recon/document/ID/freeside/04002_00 (Last accessed May1, 2014).
  128. Coroners Act. SBC 2007, c. 15. Online : http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_07015_01 [“Coroner’s Act”] (Last accessed May1, 2014).
  129. Coroner’s Act, s. 2 (a)
  130. Coroner’s Act, s. 2 ( b)
  131. Coroner’s Act, s. 2(c)
  132. Coroner’s Act, s. 2(d).
  133. Canada Health Act (R.S.C., 1985, c. C-6). Online: http://laws-lois.justice.gc.ca/eng/acts/c-6/ (Last accessed May 1, 2014).
  134. Continuing Care Act [RSBC 1996] c.70. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96070_01 (Last accessed May 1, 2014).
  135. Health Professions Act, RSBC 1996, c 183, s. 32.4 (1). Online : http://www.bclaws.ca/Recon/document/ID/freeside/00_96183_01 (Last accessed May 1, 2014)
  136. Cremation, Interment and Funeral Services Act [SBC 2004], c. 35. Online : http://www.bclaws.ca/civix/document/id/complete/statreg/04035_01 (Last accessed May 1, 2014
  137. Labour Relations Code [RSBC 1996] c. 244
  138. BC Care Providers Association. (Spring 2009). Residential healthcare and safety guidelines, pg. 4. Online: http://www.bccare.ca/wp-content/uploads/bccare_safety_grid_v11.pdf (Last accessed May 1, 2014).
  139. Health Statutes (Residents’ Bill of Rights) Amendment Act. S.B.C. 2009, s.8. Bill 17 (2009). In force by Order in Council 708 December 8, 2009). Online: http://www.leg.bc.ca/39th1st/1st_read/gov17-1.htm (Last accessed May 1, 2014).
  140. Ministry of Health. Residents Bill of Rights. Online: http://www.health.gov.bc.ca/ccf/residents_bill_of_rights.html (Last accessed May 1, 2014).
  141. British Columbia Law Institute. (September 2013). Report on Assisted Living in British Columbia. Report No. 72, at pg. 66.
  142. See RCR, s. 64 (1) Food Service Schedule.
  143. Ombuds, Best of Care.
  144. Ombuds, Best of Care.
  145. Ombuds Best of Care.
  146. Residents’ Bill of Rights, s. 2(1).
  147. Residents’ Bill of Rights, s.2 (2).
  148. Residents’ Bill of Rights, s. 3.
  149. Residents’ Bill of Rights, s. 4.



This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.
v • d • e
Introduction
Chapter One: Statutory Framework
Chapter Two: Residents' Bill of Rights
Chapter Three: Legal Issues in Admission and Transfer
Basic Issues in Eligibility for Residential Care · Moving to Residential Care · Costs · Agreeing to the Admission · Demonstrating Consent · Assessing Capability to Consent? · What Kind of Decision is Admission to a Residential Care Facility and Who Makes It? · Terms in Admission Agreements and Contracts · Payment Default and Guarantees · Signing as a Substitute Decision-Maker (SDM) · Other Areas · Contractual Protections · Screening · Assessing Capacity for Admission · Consent · Use of the Mental Health Act to Admit Older Adults to Residential Care · What is “Appropriate”? · The Effect of Declining an Offered Placement · Advance Care Planning · Care Plans · Admission of Veterans · Admission of Aboriginal Residents · Admission of Spouses with Different Care Needs · Admission of Sponsored Immigrants Needing Care
Chapter Four: Legal Issues When Living in Residential Care
Chapter Five: Rights, Remedies and Problem Resolution
Chapter Six: Consent and Capacity
Consent: An Area of Confusion · Mental Capacity to Consent · Presumption of Capability · Misuses of Presumptions · How is Capability Determined? · Understanding Tests of Incapability · The Conditions of Health Care Consent · Who Must Seek Consent for Health Care? · What is Meant by “Health Care”? · Consent Rights · The Consent Process · How Does a Person Give Consent? · Exceptions to Requiring Consent · Health Care at the Margins · Areas of Confusion Around Health Care Consent in Residential Care · Information Rights · Exploiting Consent Loopholes? · Consent and Care Plans · Rights Associated with Care Plan Consent · Advance Care Planning - Advance Care Plan and Advance Care Directives · Consent and Advance Care Directives · Common Areas of Misunderstanding for Advance Health Care Consent · What is Personal Care? · Determining a Resident’s Capacity to Make Personal Care Decisions · Intimacy and Sexual Relations · What Constitutes Consent in the Context of Intimacy and Sex?
Chapter Seven: Substitute Decision-Making
Resources, References and Information


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

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 old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

Short for the Child Support Guidelines, a regulation to the federal Divorce Act, adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

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."

A person who holds property in trust for the benefit of another person. See "trust."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

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