Introduction to Legal Issues in Admission and Transfer in Residential Care

This chapter describes legal issues associated with the process of a person transferring from home, hospital or other setting such as an assisted living facility to residential care. It briefly describes the assessment process; consenting to admission; care plan development; and contracts signed at the time of admission. The admission process is largely shaped by the Ministry of Health’s Home and Community Care Policy, residents’ rights and the common law (contracts and consent).

A. Introduction

Although the number of older adults in British Columbia needing care and support has increased significantly in the past decades, the number of higher level “care beds” to meet those needs has only increased marginally, leaving a gap in care and support. In many cases, people move into residential care facilities because their needs have expanded beyond what other systems such as assisted living and community or family support can offer.

Licensed residential care facilities have three essential features that set them apart from other supportive living environments, such as assisted living. Each is an important consideration when applying and interpreting the law in this area.

a) A person cannot be admitted to a subsidized residential care facility or extended care facility without having specific care needs. The person must have a level of care need that cannot be appropriately met in the community. Today, that means the person requires what is referred to in the British Columbia health system as “complex care”.

b) All licensed residential care facilities (including private pay hospitals and extended care facilities) have a responsibility for monitoring on-going care needs, identifying significant changes and meeting the current and changing care needs of the residents.

c) The primary reason for discharging a resident from a residential care facility is that the resident no longer requires the care offered by the facility, or the resident requires a higher level of care that can only be provided elsewhere.

1. Basic Issues in Eligibility for Residential Care

British Columbia has a provincial home and community care assessment and placement system, but operated and managed within each regional health authority. This system determines people’s eligibility for admission to care facilities, decides who has priority, and manages the waiting list for admission to publicly funded “beds” in residential care facilities. In theory, no one can be admitted to a facility unless the health authority has found the applicant eligible and authorizes their placement in a particular facility, and the applicant (or appropriate substitute decision maker) consents to that placement.

To be eligible for residential care, the person must:

• Have a health care need that requires 24-hour nursing and personal care
• Be a citizen of Canada or have permanent resident status *
• Be 19 years of age or older
• Have lived in B.C. for ninety (90) days or longer** (can be waived in certain circumstances)
• Agree to the assessment process *** (unless involuntarily admitted or transferred to the facility under the Mental Health Act).

In order to be eligible for residential care at a subsidized rate, the person must also agree to the release of financial information to the health authority in order to determine financial eligibility. If they do not agree to that financial disclosure, or they are not capable of consenting, they are assessed at the highest rate.

Some health authorities state in their public information that the individual must also exhaust all other home care community options. Nothing in the Ministry of Health eligibility criteria requires this. The primary issue for most residential care admissions is that the person meets the high threshold of needing 24 hour care. For subsidized residential care, the person must also meet the financial eligibility requirements for the public subsidy.

The most common reason for people to need residential care these days is a blend of physical health and cognitive factors for the prospective resident, as well as environmental factors such as risky living circumstances and caregiver burnout. The prospective residential care facility applicant is often a person with multiple and complicated chronic health conditions, with or without dementia that has progressed to the moderate to advanced stages.

In British Columbia, people who can no longer be cared for in their own homes or in an assisted living residence will be candidates for residential care services if:

• they are physically dependent, with medical needs that require professional nursing care, and require a planned program to retain or improve functional ability;
• their conditions are clinically complex (meaning they have multiple disabilities or complex medical conditions that require professional nursing care, monitoring or specialized skilled care);
• they are moderately to severely cognitively impaired; or
• they have severe behavioural problems on a continuous basis.

To determine the prospective resident’s health care needs in the community the Ministry of Health uses a standardized tool called the Resident Assessment Instrument (or RAI). That assessment tool helps to identify needs and degree of urgency for placement. A specific version of the standardized assessment tool Resident Assessment Instrument Minimum Data Set (RAI MDS 2.0) is used in residential care facilities for the assessment and care planning.

Special Note: An Exception is always Possible

For any type of health authority decision made about prospective or current residents, an exception is always possible. It may be rare, but it is possible.

“Health authorities may authorize exceptions to policy in client specific circumstances, based on assessed need. Health authorities must maintain a record of waivers and any exceptions to provincial policy and report these, with the relevant background information such as rationale and timeframe for the exception, to the ministry.”

2. Moving to Residential Care

A prospective resident (or applicant) may come from a variety of places while waiting to move to a residential care facility. This includes living at home, in an assisted living residence, in a hospital, an alternate level of care (transition care facility) , in a non-subsidized residential care bed, or in a subsidized residential care bed that is not in their preferred facility or community.

Placement in residential care is based on a system of “priority access”. According to Ministry of Health policy, clients on the waiting list are prioritized based on the urgency of their care needs. That priority is established by the assessment process administered by health authorities and is commonly referred to as the “first available bed” or “first appropriate bed” process. (The Ministry of Health now prefers the term “first appropriate bed.”) In recent years, the health authorities in British Columbia have given priority for residential care placement to people transferring from hospital over those at home or in another facility. The health authorities, not the private care facility operators, manage the waitlists for all funded beds in the residential care facilities.

Important Note: If the resident or substitute decision maker decides to pay privately, the resident will be placed further down the waitlist for a publicly funded bed because the person’s situation is no longer considered as urgent by the health authority.

In the best of worlds an older adult’s admission (or transfer) to a residential care facility would be a carefully considered and planned matter. Today for many people this decision and process often occurs in a rushed manner, with few options and without needed information. This can leave the prospective resident, family and others struggling to know:

• what choice in facilities they have, if any,
• what information they should be receiving,
• what their rights and responsibilities are,
• what the financial implications of their decisions are,
• what the Operators’ responsibilities are, and
• any avenues of recourse they may have if issues arise.

Part of the challenge that people face are systemic issues and pressures in the acute care hospital for the prospective resident to be “anywhere but here in the hospital.”

Transfers

People who are not able to move directly into their preferred facility can put their names on a waiting list to be transferred to their facility of choice. The health authorities maintain transfer waiting lists in addition to the lists of people waiting for initial placement. In practice, transfers from other residential care facilities are becoming far less common, in part because of the complex care needs. Today the average length of residence for people from the time of their admittance to the care facility to the end of life is only six to eighteen months. Families find that the waiting time to transfer commonly exceeds that, and one health authority states it does not permit transfers within the first two months.

3. Costs

a. Cost of a (subsidized) residential care facility

The cost of publicly funded residential care services is shared between the Ministry of Health and the person receiving services. The Continuing Care Fees Regulation sets out the fees payable for subsidized residential care, identifying a maximum and minimum rate. This is referred to as a “client rate”.

The Ministry of Health and the health authorities pay for the cost of care in publicly funded residential care services. The resident pays the “accommodation costs” in what is sometimes referred by the Ministry as a “co-payment”.

Accommodation in some older residential care facilities may consist of 3 or more beds to a room. Most new residential care facilities have semi-private rooms (2 beds in a room), or a private room has a single bed in a room. Multi bed rooms are considered “basic accommodation,” with private rooms commanding a higher rate.

The Resident Bill of Rights for Residential Care Facilities, private hospitals, and extended care units in hospitals identify a responsibility on the Operator to “advise persons who are being admitted of all fees, charges, and policies”, and “provide an avenue to file concerns or complaints.” This requirement is reinforced by s. 48 (1) (a) of the Residential Care Regulations.

People in subsidized residential care will pay up to 80 per cent of their after-tax income to cover the cost of housing and hospitality services including meals, routine laundry and housekeeping (“the accommodation costs”), subject to a minimum and maximum monthly rate. The actual amount paid must leave the individual with at least $325 (effective February 1, 2012) remaining from their income each month. For many British Columbia residents, this remaining amount often may be all that is available to cover all their “optional costs” (for examples, telephone, own wheelchair, “preferred” incontinence or grooming supplies, recreational activities). There is considerable variation among Operators in what is included in the accommodation cost, and what can be charged extra, and how much can be charged.

The resident “co-payment” ranges from $958.90 per month to $3,059.00 per month. The minimum rate is adjusted annually based on changes to the Old Age Security/Guaranteed Income Supplement rate as of July 1 of the previous year. The maximum client rate is adjusted annually based on changes to the Consumer Price Index.

b. Applying for subsidized residential care.

The cost of subsidized residential care is typically borne by and paid by the individual resident. It is based on income not assets. To apply for subsidized residential care, residents first must consent to disclosure of the income tax information they provided to Revenue Canada. This consent to disclose is required annually. If there is a spouse, the spouse must consent as well. If either person does not consent or cannot consent, the resident will be assessed at the highest residential rate.

This default position can cause considerable hardship for the individual and a spouse, partner, or family. According to the Home and Community Care policy, a spouse or other person can only give consent to provide the income tax and other financial information for the purposes of determining financial eligibility if they can show they have legal authority to do so (that is through a power of attorney, section 7 Representation Agreement, or as a Committee of the Estate). Documentation of that legal authority is required. After calculations, the health authority informs the Operator of the appropriate client rate and is not permitted to share any income information.

c. Hardship Waiver (“Temporary Rate Reductions”)

As previously noted, the statutory authority for client rates is covered by the Continuing Care Fees Regulation. The person may have low income, or may have higher income but his or her spouse is still living at home. If paying the full client rate would cause serious financial hardship, the resident or his or her substitute may apply for a temporary reduction of the rate.

This is referred to as a “hardship waiver” in the regulations. The Ministry of Health and health authorities use the term “temporary rate reductions”. These waivers or reductions are also available for other costs such as wheelchair fees. Residents and families may not be unaware these waivers exist, how to apply, or the need to re-apply annually. For others, the fact these are referred are called hardship waivers is itself embarrassing and stigmatizing, especially given the fact that many older people and their families do not want to be thought of as “charity cases”.

d. Cost of private pay (unsubsidized) residential care facility

In a private hospital or any unsubsidized care bed in a private pay facility, residential care services are accessed by the individual directly from the Operator. The facility staff conducts an assessment to decide whether or not the facility can provide the services that are being requested. In private pay facilities, the services and accommodation received are part of a private business arrangement between the Operator and the person in care and are defined through the contract.

All aspects of service provision are agreed to by the individual and the Operator in the contract. Government does not provide any financial assistance to individuals or Operators for the service.

B. Admission to the Residential Care Facility

“The question of consent should play a central role in discussions about admission to residential care facilities. Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. It follows that seniors themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, seniors’ capacity should be assessed.”

Best of Care, pg. 243

Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered. Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.

In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.

Other mentally capable adults will prefer to continue to “live at risk”, even if it means the strong possibility of deteriorating health, being injured (e.g. falls) in their home or dying there. However, some mentally capable adults will find that family or others may try to act in what they consider the person’s “best interests” and “try to plan around them.”

In other instances, individuals may not have insight into their conditions, or the effects that their decisions and risk taking have on others. Still others have come to rely on promises that family or friends made them in the past to “not make them go to a nursing home” (family or friends may simply no longer be able to keep that promise, or may not have ever intended to try). In many of these cases, silence, avoidance, subterfuge done “in their best interest” and “little lies” (“Mom, it is just for a short stay until you are stronger”) or even blatant misrepresentation has been used by family or others in the health care system to have the person admitted to a care facility.

1. Agreeing to the Admission

In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.” These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.

This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.

Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is not considered as sufficient legal authority to consent to admission or sign the admission agreement.

2. Demonstrating consent

Consenting to admission can be done verbally or in writing. A person may indirectly communicate informed consent to the Operator by nodding the head, cooperating with the questions asked, etc. Verbal consent has occasionally created problems for Operators when the resident no longer remembers or later denies having given consent. Today, Ministry of Health policy focuses on have a signed document showing consent. Arguably, that does not mean the resident or substitute must sign. However, it can be important for the Operator to document in some manner that the person has consented to admission, even if it was done verbally.

3. Assessing capability to consent?

As noted above, health authorities are required to assure “that a client’s capacity to provide informed consent to facility admission has been assessed. “Assess” may be interpreted in two ways in this policy context:

a) colloquially (“determine if the person appears to be mentally capable of providing informed consent: consider the way they communicate, signs and behaviours…”, “Does it seem as if they are consenting and are mentally capable of making this decision (recognizing that acquiescence is not the same as consent)?”) or

b) undertake a formal assessment of mental capability.

The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.

If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.

The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute Decisionmaking”.

4. What kind of decision is admission to a residential care facility & who makes it?

For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else.

Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”

In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.

However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.

It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation.

Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.

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

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

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

In contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."

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

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

In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

The geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."

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 property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."

In 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."

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."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

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

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

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

Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."

A government action or declaration intended to have a legal effect, usually in the form of legislation or regulation. See "act" and "regulations."

To determine the proper value or worth of something. A lawyer's bill may be assessed by a registrar to determine the actual amount the client should pay. See "appraisal."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

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."