Other Key Laws and Regulations in Residential Care

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Beyond the Big Four - the Supporting Cast[edit]

Together the four statutory and regulatory components of the law provide the general framework for the operators of the facilities, setting out their general responsibilities, and the licensing framework, and minimum standards for operation.

There are several other important pieces of legislation relevant to the rights of seniors in residential care facilities, and the responsibilities of others for the care of seniors. For example, the Mental Health Act can have important implications for prospective residents who are viewed as mentally incapable.(1)


The primary statutory requirements for care in care facilities come under the Residential Care Regulations. However, other laws are important to residential care issues, especially in the context of mental capacity issues.

Adult Guardianship Act
This Act sets out the presumption that adults of any age are capable of making decisions about their own personal care, health care and financial affairs.(2) Part 3 of the Act covers support and assistance to vulnerable adults who may be experiencing abuse and neglect in almost any setting. (3)
Health Care (Consent) and Care Facility (Admission) Act (4)
This Act sets out the general rules for consent to treatment, the presumption of capability to consent, and what is meant by “health care” in this context. It identifies who can be a statutory (temporary) substitute decision maker for health care when a person becomes mentally incapable. It describes the scope of representation agreements in health care settings. It identifies the scope and requirements for advance directives, as well as how and when advance directives apply.
Mental Health Act (5)
The Mental Health Act is protective legislation designed to ensure the safety and well-being of people with mental illnesses. It establishes the mechanism by which a “person with a mental disorder” can be involuntarily detained and admitted to a “mental health facility”. The Act has been used to involuntarily admit people who are considered “mentally incapable” of consenting (or refusing to consent) to move into a residential care facility by transferring them from hospitals to care facilities on “extended leave”.(6) This process is described in Chapter Two on Admissions & Transfers. It is generally considered as inappropriate to use the law in this manner.
It has been used primarily because Part 3 of the Health Care (Consent) and Care Facility (Admission) Act has not come into force. Part 3 creates a process allowing a substitute decision-maker to consent to the admission of an adult who is not capable of making an informed decision to a care facility. The Mental Health Act sets out a process by which the involuntary detentions can be reviewed by the Mental Health Review Board.
Occupational Health and Safety Regulations
These concern the employer’s obligations regarding a violence prevention program (risk assessment, procedures/policies, instruction of workers) in a workplace, and an employee’s right to refuse unsafe work.

Financial and Related Matters[edit]

Power of Attorney Act (7)
This Act enables individuals to draft a power of attorney or an enduring power of attorney so that others may make financial decisions or deal with financial and related legal matters on a person’s behalf. It identifies that mechanism and process of making a power of attorney (including the presumption of capability), and sets out the duties and responsibilities of the person granted the power. The power of attorney is one of the most commonly misunderstood documents in residential care.
Public Guardian and Trustee Act (8)
This Act authorizes the Public Guardian and Trustee to investigate and audit the affairs, dealings and accounts of an adult who has a guardian, an adult who is apparently abused or neglected, as defined in the Adult Guardianship Act, or an attorney under a power of attorney or an enduring power of attorney for failing to follow his or her duties properly.(9)

In addition, the Public Guardian and Trustee may investigate the personal care and health care decisions made by a representative or guardian, if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties.

Substitute Decision-Making[edit]

Representation Agreement Act (10)
This Act allows adults to arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently. It is also intended to avoid the need for courts to appoint someone to help an adult make decisions, or someone to make decisions for adults, when they are incapable of making decisions independently.
Patient Property Act (11)
This Act authorizes people to be certified as mentally incapable in British Columbia. It has been in place since 1979.(12) Once a certificate has been issued, it gives the Public Guardian and Trustee the authority to manage the person’s estate. The Act provides statutory mechanisms under which a public or private committee (a government agency or private person) may exercise what is essentially guardianship. It also provides for a court ordered committeeship. The committee has authority over the incapable adult’s financial and legal decisions about their money and property (referred to as a “committee of the estate”) or the incapable adult’s health and personal care decisions (a “committee of the person”).

Privacy Matters[edit]

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In British Columbia the Personal Information Protection Act (13) covers the collection, use and disclosure of personal information by non public bodies. The Freedom of Information and Protection of Privacy Act (14) covers the collection, use and disclosure of personal information by public bodies. People may want or need to share personal information about a prospective or current resident. For example at admission, the operator may ask the health authority for personal information about a prospective resident to determine whether a prospective resident has shown violent tendencies or behaviour in the past. In other instances, other parties may want information about residents from the Operator. [See Chapter Three “Legal Issues in Admission & Transfer” and Chapter Four “Legal Issues When Living in Residential Care”.]

The issue of what and when to disclose information may also arise if the facility administration wants to properly accommodate the person and his or her needs. This can help avoid discrimination based on a protected ground under the Human Rights Code, e.g. sexual orientation, ethnicity, disability. This will be discussed further in Chapter Five “Rights, Remedies, and Problem Resolution”.

Special Populations[edit]

There can be laws and policies that apply to special groups of people seeking residential care, such as veterans,(15) or older sponsored immigrants. (16)Some residential care facilities have contract beds designated for priority access for eligible Veterans. The financial, familial and legal implications of who pays for care and access to care can become especially problematic for sponsored immigrants and their sponsors.(17)

Rights, Remedies and Oversight[edit]

Most issues or concerns about residential care will be addressed internally using the care facility’s complaint procedures. There are also a number of external administrative and legal mechanisms for raising concerns about residential care that may offer methods of redress or remedies (described in detail in Chapter 6, Rights, Remedies and Problem Resolution).These include:

  • Community Care Licensing Offices - Community Care Licensing is responsible for the developing and implementing legislation, policy, and guidelines to protect the health and safety of people being cared for in licensed facilities.(18) Community Care Licensing falls under the Home, Community and Integrated Care Branch (Health Authorities Division). A Medical Health Officer appointed under the Public Health Act (19)is responsible for issuing care facility licences, inspecting licensed facilities and investigating complaints that an unlicensed facility is being operated.(20) Inspections of facilities are carried out on a risk assessment basis.(21) Licensing deals with health and safety complaints, as opposed to quality of care matters.
  • British Columbia now has a province-wide process for receiving and responding to complaints about the quality of health care services (a “patient care quality complaint”).(22) The Patient Care Quality Office is the central complaints office within each health authority. It is required to receive, investigate and respond to complaints regarding the quality of care that a person receives. It covers both the delivery of the services and the quality of the services. The Office derives its authority from the Patient Care Quality Review Board Act(S.B.C. 2008, c.35).(23)
  • Patient Care Quality Officers review complaints received, investigate and are required to provide responses back to the complainant within 30 business days, giving information about what was learned during the investigation. The Act also requires each regional health authority to establish a Patient Care Quality Review Board to review complaints that remain unanswered within 30 days or not answered to the person’s satisfaction.
  • Human Rights Code (24)- The Code protects people from discrimination in many areas including “accommodations, services or facilities customarily available to the public”.(25) In order to be “discrimination”, the action must be without bona fide and reasonable justification. (26) The Code also protects from harassment (a form of discrimination)(27). Unlike the Charter which only covers [public] government action, the Human Rights Code covers the actions of both public and private bodies. The areas protected for accommodation, services or facilities relate to a person’s or group’s age, physical or mental disability, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, or sexual orientation.(28) Cases are heard by the Human Rights Tribunal,
  • Ombudsperson Act(29) - The Office of the Ombudsperson is responsible for assuring that specified provincial government ministries or public agencies treat the public fairly and reasonably. The Office is responsible to impartially investigate the complaints to determine whether fair treatment has occurred, and whether the actions and decisions of provincial government ministries or public agencies were consistent with relevant legislation, policies and procedures.
  • Canadian Charter of Rights and Freedoms (30)- The Charter guarantees certain civil rights to people in Canada from the policies and actions of all level of government. It covers fundamental freedoms, equality rights, legal rights, democratic rights, mobility rights, and language rights, many of which are particularly relevant to the treatment of people in residential care.
  • Criminal Code (31) - As in any other setting, some actions that occur in residential care facilities such as theft, assault, gross neglect leading to death (32)or homicide may come within the scope of criminal law. The actions of staff, volunteers, visitors as well as residents can come under the force of the Criminal Code of Canada. Very recently, s. 215 of the Criminal Code (“failure to provide the necessaries of life") was used in a precedent setting way to lay a charge against staff in an institutional (non care) setting.(33)
  • A resident may have been experienced problems with family, neighbours or others in the community that follow the resident into the facility. New problems or conflicts may also develop there. In some of these cases, advocates and providers may need to be familiar with peace bonds (“810 recognizances”) and “no contact orders” issued by criminal court judges; “release conditions”. As well they may need to be familiar with “family law protection orders” under the Family Law Act.(34)
  • Consumer Protection - Some services provided to residents in care facilities may be direct performance contracts. The Business Practices and Consumer Protection Act (35) prohibits unfair practices, sets out the requirements for certain consumer contracts and provides licensing requirements for regulated businesses. The Act consolidated several consumer statutes. It protects consumers by standardizing contract terms, clarifying cancellation rights and ensuring that penalties for infractions are applied consistently across industries. The Ministry of Health is currently drafting standardized contract template for admission agreements.
  • Coroners Act (36) - Among other things, this Act places a responsibility on everyone in British Columbia to report the death of anyone who they believe has died as a result of violence, accident, negligence, misconduct or malpractice, (37)or suicide to a coroner or peace officer.(38)That includes the death of a person living in a residential care facility or who is transferred to a hospital or other setting from a residential care facility. Accidental, negligent or violent deaths in residential care may involve a wide variety of circumstances, including a missing person who is cognitively impaired, a mechanical equipment malfunction, scalding during bathing, or assaults between residents.
  • In recent years, the BC Coroner has investigated incidents of residents' death caused by another resident. (41) In theory, a Coroner's investigation may result in a coroner's inquest, a death review panel, or a coroner's report to the institutions that were responsible for the care of the residents involved. The Coroner can also investigate any sudden and unexpected death when the person was apparently in good health and not under the care of a medical practitioner,(39) as well as deaths from disease, sickness or unknown cause, for which the person was not treated by a medical practitioner.(40)

Legislation Related to Funding[edit]

  • Canada Health Act (42) - Hospitals and doctors are covered by the Canada Health Act; residential care facilities are not. The Canada Health Act establishes the criteria and conditions that the provinces and territories must meet to be eligible for available federal government health care funding.
  • The extended care services provided in residential care facilities are not included in the funding criteria and national standards contained in the Act. However, for the purpose of this legal manual, the Canada Health Act remains important as it relates to what hospital administration can do or can charge patients in the transition from hospital care to residential care. This is described further in Chapter Three Legal Issues in Admissions & Transfers.
  • Continuing Care Act and Regulations -Continuing care is defined as one or more health care services to persons with a frailty or with an acute or chronic illness or disability that does not require hospital care. This Act (43) allows the Minister of Health to enter into payment Agreements with operators for the services given to clients so they can receive continuing care from the operator. The Act also sets out applicable standards, guidelines or directives issued by the minister.
  • Continuing Care Fee Regulations (44)- The regulations authorize the Minister to charge residents a prescribed monthly fee.
  • Hospital Insurance Act Regulations. (45) Section 8.4 of this Act sets out a monthly charge for extended care hospital residents.

IMPORTANT NOTE: The Continuing Care Fee Regulations, (s. 6) and the Hospital Insurance Act Regulations (s. 8.6) authorize the Minister to reduce some or all the charges that the resident might otherwise be required to pay in residential care facilities and extended care hospitals. These are the legal basis for the "hardship waivers" for which residents or their legal representatives can apply.

Professional Responsibility Laws[edit]

  • Health Professions Act: This act governs the regulation of a number of health professions. The Act also sets the expected response to certain harms perpetrated on people in care by health professionals. The Act requires identified “designated health professionals” to report certain harms to their registrar, including, (a) sexual misconduct (by someone in that profession) and (b) behaviour by someone in that profession that is dangerous to the public. (46) Reporting sexual misconduct requires the client’s consent (or consent by his or her legal representative if the person is not capable). A list of Health Professions covered by this Act most relevant to this setting is listed in Appendix B.


Cremation, Interment and Funeral Services Act (47)
This Act identifies who can authorize the picking up human remains from a care facility. There is current disagreement about who can give authorization and whether funeral instructions in an admission agreement are valid (the right to give instructions re: funeral does not vest until after death).
Labour Relations Code (48)
Governs the conduct of both parties in the event of a breakdown in labour negotiations. Also the Code calls for the development of an essential service plan for residents in the event of labour disruption.


  1. Mental Health Act [RSBC 1996] c. 288. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96288_01 (Last accessed January 9, 2016).
  2. Adult Guardianship Act [RSBC 1996] c. 6 Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96006_01(Last accessed January 9, 2016).{"AGA"}
  3. 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.”
  4. 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 January 9, 2016).
  5. Mental Health Act.
  6. Ombuds, Best of Care, pg. 265-268.
  7. Power of Attorney Act [RSBC 1996] c.370. Online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_08028_01 (Last accessed January 9, 2016).
  8. Public Guardian and Trustee Act [RSBC 1996] c. 383. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96383_01 (Last accessed January 9, 2016). {"PGT Act"}
  9. PGT Act.
  10. Representation Agreement Act [RSBC 1996] c.405. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01 (Last accessed January 9, 2016).
  11. Patient Property Act [RSBC 1996] c. 349. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96349_01
  12. 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: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016).
  13. Personal Information Protection Act [SBC 2003] c. 63. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_03063_01 ((Last accessed January 9, 2016).
  14. 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 January 9, 2016).
  15. 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 January 9, 2016).
  16. 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 January 9, 2016).
  17. 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.
  18. Ministry of Health. “Community Care Licensing.” See for example, a provincial overview "A guide to Community Care Licensing in British Columbia". Ministry of Health. Online : http://www2.gov.bc.ca/assets/gov/health/accessing-health-care/finding-assisted-living-residential-care-facilities/residential-care-facilities/a-guide-to-community-care-facility-licensing.pdf (Last accessed January 9, 2016). Each Health Authority has its own licensing program and and approach, see for example: Fraser Health "Community Care Facilities Licensing Program" Online : http://www.fraserhealth.ca/media/CCFL-Program-Brochure-revised-January-2013.pdf (Last accessed January 9, 2016); Island Health "Licensing" Online: http://www.viha.ca/mho/licensing/ (Last accessed January 9, 2016).
  19. Public Health Act [SBC 2008] c. 28. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/08028_01 (Last accessed January 9,2016).
  20. Community Care Licensing.
  21. 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.
  22. Patient Care Quality Review Board Act (S.B.C. 2008, c.35). Online: http://www.bclaws.ca/civix/document/id/complete/statreg/08035_01 (Last accessed January 9, 2016).
  23. Ministry of Health. Community Care Licensing. Online: http://www.health.gov.bc.ca/ccf/ (Last accessed January 9, 2016).
  24. Human Rights Code [RSBC 1996] c. 210. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96210_01 (Last accessed January 9, 2016).
  25. HRC, s. 8(1).
  26. HRC, s. 8(1).
  27. Ministry of the Attorney General (January 2008). Human Rights in British Columbia. “Harassment”.
  28. Human Rights Code, s. 8(1).
  29. Ombudsperson Act [RSBC 1996] c. 340. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96340_01 (Last accessed January 9, 2016).
  30. 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 January 9, 2016).
  31. Criminal Code of Canada, R.S.C., 1985, c. C-46. Online : http://laws-lois.justice.gc.ca/eng/acts/C-46/ (Last accessed January 9, 2016).
  32. 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 January 9, 2016).
  33. 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.
  34. Family Law Act, [SBC 2011], c. 25. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/11025_01 (Last accessed January 9, 2016).
  35. Business Practices and Consumer Protection Act. SBC [2004] c. 2. Online: http://www.bclaws.ca/Recon/document/ID/freeside/04002_00 (Last accessed January 9, 2016).
  36. 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 January 9, 2016).
  37. Coroner’s Act, s. 2 (a).
  38. Coroner’s Act, s. 2 (b).
  39. Coroner’s Act, s. 2(c).
  40. Coroner’s Act, s. 2(d).
  41. In 2013, the BC Coroner investigated two deaths of residents in Vernon and Kamloops caused by residents with dementia, plus one Kamloop's death in 2015, also by a resident with dementia
  42. Canada Health Act (R.S.C., 1985, c. C-6). Online: http://laws-lois.justice.gc.ca/eng/acts/c-6/ (Last accessed January 9, 2016).
  43. Continuing Care Act [RSBC 1996] c.70. Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96070_01 (Last accessed January 9, 2016).
  44. Continuing Care Fee Regulations, B.C. Reg. 330/97 s. 6. "Hardship waiver". In particular see section s. 6 (3)(c)(ii). Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96070_01 (Last accessed May 10, 2016).
  45. Hospital Insurance Act Regulation. BC Reg 25 /61 Online: http://www.bclaws.ca/Recon/document/ID/freeside/25_61#section8.6 (Last accessed May 10, 2016).
  46. 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 January 9, 2016).
  47. Cremation, Interment and Funeral Services Act [SBC 2004], c. 35. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/04035_01 (Last accessed January 9, 2016).
  48. Labour Relations Code [RSBC 1996] c. 244. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96244_01 (Last accessed January 9, 2016).

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