Key Bill of Rights Provisions for Residential Care

Commitment to Care

1. An adult person in care has the right to a care plan developed

(a) specifically for him or her, and

(b) on the basis of his or her unique abilities, physical, social and emotional needs, and cultural and spiritual preferences.

Section 1 emphasizes a commitment to using an individualized approach to whatever care and support will be provided to the resident, and how it will be provided. The approach to care is expected to be shaped by the resident’s unique abilities (who they are and have been, what they are able to do, where they are able to make their own decisions, and where they may need some support). The approach to care is expected to focus on more than just the person’s physical needs, but also their emotional and social needs as a person. The resident’s cultural and spiritual preferences are also important.

Social needs might include, for example who they prefer to sit with at the dining room, who they want to associate with within the facility, their continued connection with friends or the community, or who they do not like to visit. In some cases, requirements in the residential care regulations can affect the opportunities that an operator and staff have to provide more individualized care and support.(1)

Cultural and spiritual preferences include opportunities to participate in the facility or outside in activities or rituals meaningful to that resident. Cultural preferences may also include matters such as food preferences, alternative or complementary therapies, their preferred method of information sharing, and preferred approach to end of life care.

Rights to Health, Safety and Dignity

2. An adult person in care has the right to the protection and promotion of his or her health, safety and dignity, including a right to all of the following:

(a) to be treated in a manner, and to live in an environment, that promotes his or her health, safety and dignity;

(b) to be protected from abuse and neglect;

(c) to have his or her lifestyle and choices respected and supported, and to pursue social, cultural, religious, spiritual and other interests;

(d) to have his or her personal privacy respected, including in relation to his or her records, bedroom, belongings and storage spaces;

(e) to receive visitors and to communicate with visitors in private

(f) to keep and display personal possessions, pictures and furnishings in his or her bedroom.

Section 2 identifies how the resident is to be treated. The key aim of the section focuses on the care facility’s role to promote each resident’s dignity, health, and safety, as well as safeguard residents if these rights or freedoms are being infringed. These three (dignity, health, and safety) are inter-related concepts that often work together. Several types of specific rights are identified in this part including: autonomy rights and non- discrimination; self expression and recognition of personhood and life history; rights to communication and association; freedom from abuse or neglect, as well as protection from these harms.

There are many areas of care where dignity is involved. One is continence care (assistance going to the bathroom). The British Columbia Ombudsperson noted:

“As with eating, going to the bathroom is one of the most basic of personal needs. Failing to respond to this need in a timely way offends human dignity. To ensure fair treatment, a specific standard should be established that balances the needs of seniors, the expectations of families and the capacities of facility operators.” (2)

A second area key to promoting dignity in residential care is the use of physical, chemical or environmental restraints. As the British Columbia Ombudsperson has noted:

“Regardless of the circumstances or the method used, restraining someone reduces that person’s individual liberty and affects his or her dignity.”(3)

Privacy

Section 2 acknowledges and protects personal privacy is several contexts (privacy when receiving care, privacy in communication, privacy in physical space and environment, and privacy of personal information and records). “Privacy” in residential care has several related meanings, including the right to be treated in a dignified manner when receiving care, irrespective of whether a person seems to be mentally aware, and the right to control over certain aspects of one’s life (e.g. meals, visitors, mail, information, records). In other contexts, privacy can mean the right be left alone (e.g. to choose to not participate).

In section 2, safety is viewed as one important consideration but it is not the only consideration. Personal privacy needs to be respected in all aspects of the residents’ lives. Common examples of respecting privacy in residential care include when staff and others:

• provide personal or health care (e.g., putting in dentures) in private, not in public areas of the facility
• knock before entering the resident’s room, and waiting for the resident to answer
• ask permission before cleaning a resident’s room or anything else that belongs to the resident, or touch a resident’s personal belongings.

Respecting privacy in residential care is often shown by what people do not do. That includes, for example, when staff:

• do not use the resident’s possessions (e.g. wheelchair or walker) for someone else without their permission,
• do not share personal and confidential information about the resident without consent, or
• do not talk with each other unnecessarily about residents’ lives.

Issues about limits on personal privacy issues can come when care facilities ban smoking or alcohol consumption by residents. Sometimes an operator may try to enforce the policy by having the staff search a resident’s room under pretext of “cleaning”, and seize “contraband” possessions without permission.In some cases, family members’ possessions might be searched. Whether these are reasonable limits will depend on the particular circumstances, the actions taken and the specific risks involved.

Physical privacy is often an issue for residents in the private hospitals which tend to have double and quadruple occupancy rooms for residents. Privacy is becoming an increasingly important issue in residential care because of developing technologies that allow for continuous monitoring of a person, falls detection, as well as video surveillance by family or the operator.

Rights to Participation and Freedom of Expression

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3. An adult person in care has the right to participate in his or her own care and to freely express his or her views, including a right to all of the following:

(a) to participate in the development and implementation of his or her care plan;

(b) to establish and participate in a resident or family council to represent the interests of persons in care;

(c) to have his or her family or representative participate on a resident or family council on their own behalf;

(d) to have access to a fair and effective process to express concerns, make complaints or resolve disputes within the facility;

(e) to be informed as to how to make a complaint to an authority outside the facility;

(f) To have his or her family or representative exercise the rights under this clause on his or her behalf.

Section 3 focuses on the president’s personal involvement and family involvement in the resident’s individual care and the broader systemic issues affecting this resident and others in the facility. It recognizes autonomy, and joint decision making in care. Each resident has the right to participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters.

Section 3 stresses the importance of residents being able to freely express views, plus participate in the development and implementation of any plans for their care. It includes personal and supported involvement, where the resident and family shape the care by working with the staff and have a right to accept, revise or turn down what is being proposed. The term “family” here means whomever the resident wants to include. Section 3 of the Bill of Rights also recognizes resident and family councils as important mechanisms to help improve individual and collective care within the facility.

Section 3 also stresses the importance of residents, family or representatives having effective opportunities and avenues for raising concerns if and when problems arise, as well as having these addressed at that point. In many cases, that right can only be exercised by first knowing about the internal and external complaint mechanisms. However the mechanisms must also be appropriate to the circumstances of residents and others advocating on their behalf.

Rights to Transparency

Rights to transparency and accountability

4. An adult person in care has the right to transparency and accountability, including a right to all of the following:

(a) to have ready access to copies of all laws, rules and policies affecting a service provided to him or her;

(b) to have ready access to a copy of the most recent routine inspection record made under the Act;

(c) to be informed in advance of all charges, fees and other amounts that he or she must pay for accommodation and services received through the facility;

(d) if any part of the cost of accommodation or services is prepaid, to receive at the time of prepayment a written statement setting out the terms and conditions under which a refund may be made;

(e) To have his or her family or representative informed of the matters described in this clause.

Section 4 of the Bill of Rights focuses on information that is expected to be readily available for the resident and family. The terms “transparency and accountability” in the title is somewhat unorthodox, in that the term is more commonly used in the context of government actions.

Information expected to be available from the operator would include fees, charges, and rules, internal and external policies. The information expected to be available from health authorities and Ministry of Health would include specific information on the facility (inspection record), laws affecting residential care, plus any health authority, or Ministry of Health or other Ministry rules and policies that apply in this area. In theory, access to this information aids self advocacy or advocacy on behalf of the resident.

One of the positive features of this “right to access” is that it may reduce problems in interpretation. People can see both the wording and rationale behind the policy, which may help in understanding whether a different (e.g. less restrictive, more supportive) approach could be used with a particular resident or residents generally.

Some parts of Section 4 are consumer rights (e.g. s. 4 (c) and (d); these may look out of place in a Bill of Rights. However, this explicit statement is intended to address a common problem raised by the BC Ombudsperson Office of when residents moved into a care facility without knowing the costs, or what services were included. Residents and families are often unaware of Residential Care Rate Structure, or Rate Reductions and Waivers.(4)

Scope of Rights

This section sets out the scope of the rights, describing what limitations, if any, there are on the listed rights.

5. The rights set out in clauses 2, 3 and 4 are subject to:

(a) what is reasonably practical given the physical, mental and emotional circumstances of the person in care,

(b) the need to protect and promote the health or safety of the person in care or another person in care, and

(c) The rights of other persons in care.

The Scope of Rights section is very notable in that there are only two identified “limits” on the residents’ rights. The first is the person’s capabilities (for example, which might make it difficult to actively participate). The second justifiable limit under the Bill of Rights is where it can be demonstrated that an action to respect one resident’s right would negatively affect the health and safety of another resident or the rights of others residents. The needs or interests of staff or the provider are not relevant in this context and are not a legitimate limit on these rights. Mere possibility or conjecture that it might affect other residents’ health or safety would not be acceptable limits.

References

1. See RCR, s. 64 (1) Food Service Schedule.
2. Ombuds, Best of Care.
3. Ombuds, Best of Care.
4. Ombuds Best of Care.

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

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."

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In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

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

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."

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In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

In law, a document demonstrating ownership of a thing. See "ownership."

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