Personal Care and Consent in Residential Care

What is Personal Care?

The term “personal care” is used very loosely in legal and health care fields without much regard to what it really means. In some frameworks, personal care decisions include anything that is not a financial or legal matter, and health care becomes just one specific type of personal care decision, with its own special requirements.

Most legal descriptions of “personal care” have been developed in the context of giving someone formal legal authority to assist the other person with decisions “in the event the person needs help speaking up for himself or herself due to the challenges that can come with ageing as well as in case of illness, injury or disability”. Personal care decisions in this authority context are described as covering:

• living arrangements (where the person will live and with whom);
• assessment and planning for support or services;
• arranging and managing support or services;
• managing staff who are paid privately to provide care;
• diet;
• exercise;
• spiritual matters;
• care of pets;
• personal safety; and
• participation in activities.

The Representation Agreement Act describes “personal care” as including matters respecting

• the shelter, employment, diet and dress of an adult,
• participation by an adult in social, educational, vocational and other activities,
• contact or association by an adult with other persons, and
• licences, permits, approvals or other authorizations of an adult to do something. (1)

In a care facility, some aspects of personal care are referred to as the “basic ADLs” (activities of daily living). These consist of tasks related to areas of “self care” where the person may need assistance including:

• bathing and showering
• bowel and bladder management
• dressing
• eating
• feeding (setting up food and bringing it to the mouth)
• functional mobility (moving from one place to another while performing activities)
• personal device care
• personal hygiene and grooming
• toilet hygiene.

Each of these personal care areas involves assistance with the activity, often with a degree of close personal, and in some cases intimate contact such as touching between staff and residents. Because these involve personal contact, they always require the resident’s consent and cooperation. Intruding on the resident’s personal physical integrity without consent and cooperation in these circumstances may be considered an assault and battery.

In residential care, personal care includes the most intimate types of contact. It can include washing the person in a bath or shower, or in bed, washing hair, cleansing the person’s mouth, and eye care), movement (which can include: touching to move the resident to bed, moving the resident from lying to sitting, lateral transfers, helping the person to sit back in a chair, moving the person from sitting to standing, and walking), nutrition and fluid intake (including help with eating and drinking, feeding tubes, and feeding tube care), toileting (include using a toilet or bedpan, suppositories, enemas, feces specimens, urine specimens, and catheter care), observation and monitoring (including measuring and recording temperature, blood pressure, pulse, and respiratory rate), and care of the person immediately following death. Personal care involves cultural and religious preferences, such as whether to continue to eat kosher food.

It is well recognized that circumstances where people intrude on the resident’s personal physical integrity without consent and cooperation may be considered an assault and battery in criminal law, as well as at common law. Most care facility operators and staff recognize the fundamental importance of respecting the person’s physical integrity, and will stop or modify their approach to care if the resident appears to be resistive, refusing or not cooperating with the activity that others want to happen. Failure to do that may constitute “abuse”, under Adult Guardianship Act and the Residential Care Regulations . (2)At the same time under the same laws, failing to provide needed care or assistance may be neglect.(3)

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Determining a Resident's Capacity to Make Personal Care Decisions

As with health care decisions, a resident is presumed to be capable of making personal care decisions unless there is evidence to lead a reasonable person to believe that the resident is not capable of making that particular decision. Most personal care decisions that residents of long-term care facilities face may be categorized as decisions related to personal assistance services.

The representation agreement (described in Chapter 7 “Substitute Decisionmaking”) is a formal mechanism for people to express their wishes as to personal care decisions (where they wish to live, whether they would want to continue to have kosher meals, the type of lifestyle he or she wants to lead, etc.) and to choose someone to speak on their behalf about those preferences after incapacity.

References

1. Representation Agreement Act [RSBC 1996] c. 405, s. 1 [“RRA”]
2. See for example, RCR, Schedule D. "physical abuse" means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
3. AGA defines "neglect" as “any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect.

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

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."

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

(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.

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."

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."