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The Basic Recourse Process under CCALA (view source)
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:: - Health Association of B.C. | :: - Health Association of B.C. | ||
As part of the overall responsibility to assure and support the well-being of residents (“a person in care”), the operators of facilities licensed under the Community Care and Assisted Living Act (CCALA or “the Act”) and Residential Care Regulation are required to establish “fair, prompt and effective” processes for resolving complaints and disputes. ([[ | As part of the overall responsibility to assure and support the well-being of residents (“a person in care”), the operators of facilities licensed under the Community Care and Assisted Living Act (CCALA or “the Act”) and Residential Care Regulation are required to establish “fair, prompt and effective” processes for resolving complaints and disputes. ([[{{PAGENAME}}#References|1]]) The Act also requires operators to ensure that the resident is not subject to retaliation as a result of anyone expressing a concern (“making a report”). ([[{{PAGENAME}}#References|2]])Other Acts such as the Human Rights Code offer similar non-retaliation or protection safeguards. ([[{{PAGENAME}}#References|3]]) | ||
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The Regulations require operators to inform residents and their representatives on admission about facility’s complaints process and how they can complain to the local health authority’s Medical Health Officer (Licensing) and the Patient Care Quality Office. ([[ | The Regulations require operators to inform residents and their representatives on admission about facility’s complaints process and how they can complain to the local health authority’s Medical Health Officer (Licensing) and the Patient Care Quality Office. ([[{{PAGENAME}}#References|4]]) Operators are also required to record any complaints they receive, plus document how they responded to them. ([[{{PAGENAME}}#References|5]]) | ||
Operators may identify the complaint process in the admission agreement and may specify how the person is expected to raise concerns. Some operators may have an “internal ombudsperson” so that concerns can be directed to one person who will be responsible for follow-up. It is important to note the law does not require the resident or other person to use a step by step (“start internally and escalate if necessary”) process. Although this might commonly be advisable, there may be good reasons why a resident or other person might not do that. For example, the operator or people responsible for the internal complaint mechanism may be part of the problem, previous efforts may have gone unaddressed, or the effort has otherwise been shown to be futile. | Operators may identify the complaint process in the admission agreement and may specify how the person is expected to raise concerns. Some operators may have an “internal ombudsperson” so that concerns can be directed to one person who will be responsible for follow-up. It is important to note the law does not require the resident or other person to use a step by step (“start internally and escalate if necessary”) process. Although this might commonly be advisable, there may be good reasons why a resident or other person might not do that. For example, the operator or people responsible for the internal complaint mechanism may be part of the problem, previous efforts may have gone unaddressed, or the effort has otherwise been shown to be futile. | ||
Under Community Care and Assisted Living Act and the Regulations, operators are allowed to determine what their own complaints processes will be, as long as they meet the test of being “fair, prompt and effective.”([[ | Under Community Care and Assisted Living Act and the Regulations, operators are allowed to determine what their own complaints processes will be, as long as they meet the test of being “fair, prompt and effective.”([[{{PAGENAME}}#References|6]]) While this offers flexibility, this can result in wide variations in the complaints processes among the facilities across the province. As a result, the BC Ombudsperson recommended the Ministry of Health take a more standardized (“specific, legalized”) approach with timeframes and records. ([[{{PAGENAME}}#References|7]]) While on its face a laudable goal, there may be numerous challenges with a standardized approach. ([[{{PAGENAME}}#References|8]]) | ||
==Concerns About Raising Concerns== | ==Concerns About Raising Concerns== | ||
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Residential care can be a relatively socially isolated environment. Residents often have small social networks before coming into residential care and may lose their remaining ties with family, friends and rest of the community. This happens for many reasons, including having to leave their friends and community because of “first appropriate bed” policies. Many residents recognize that they are very dependent on staff and others for care, and are often cautious about expressing anything that might be viewed as “rocking the boat”. Other residents may not have the physical capacity or mental capacity to identify problems or report their concerns. | Residential care can be a relatively socially isolated environment. Residents often have small social networks before coming into residential care and may lose their remaining ties with family, friends and rest of the community. This happens for many reasons, including having to leave their friends and community because of “first appropriate bed” policies. Many residents recognize that they are very dependent on staff and others for care, and are often cautious about expressing anything that might be viewed as “rocking the boat”. Other residents may not have the physical capacity or mental capacity to identify problems or report their concerns. | ||
Family members and friends are often concerned about the potential for adverse consequences for the resident when they are not there, as well as for themselves (such as restrictions on visiting). ([[ | Family members and friends are often concerned about the potential for adverse consequences for the resident when they are not there, as well as for themselves (such as restrictions on visiting). ([[{{PAGENAME}}#References|9]])Volunteers are there at the largesse of administration. Staff may be concerned about risking their job, including ending up with reduced hours or less favourable shifts, especially if they are casual and part-time workers. Sometimes people’s reactions simply reflect fear of the unknown. In other instances, these are reasonable responses to previous situations that may not have been handled well in this care facility or others. | ||
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===Who is protected and when?=== | ===Who is protected and when?=== | ||
The CCALA and its accompanying Regulations recognize these realities and offer some protections. In addition to requiring the operator have a fair, prompt and effective process for expressing and addressing concerns, the Regulations specifically note that, the operator must ensure that there is no retaliation against a resident (“person in care”) as a result of any person expressing a concern or making a complaint. ([[ | The CCALA and its accompanying Regulations recognize these realities and offer some protections. In addition to requiring the operator have a fair, prompt and effective process for expressing and addressing concerns, the Regulations specifically note that, the operator must ensure that there is no retaliation against a resident (“person in care”) as a result of any person expressing a concern or making a complaint. ([[{{PAGENAME}}#References|10]]) All complaints, concerns and disputes are expected to be responded to promptly. ([[{{PAGENAME}}#References|11]]) That places a positive duty on the Operator to address problems and concerns promptly. Both CCALA and the Adult Guardianship Act offer reporting protections to the resident, staff and others, but to different degrees. See Figure 1 for a summary. | ||
The CCALA, for example, offers residents specific protection against retaliation and adverse consequences. The Operator must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a resident, where a person has made a report or has expressed an intention to do so. ([[ | The CCALA, for example, offers residents specific protection against retaliation and adverse consequences. The Operator must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a resident, where a person has made a report or has expressed an intention to do so. ([[{{PAGENAME}}#References|12]])The Operator or any other person cannot act in a way that negatively affects service to resident as a result of an abuse report or intention to make the report. ([[{{PAGENAME}}#References|13]])Staff and other people also have certain protections if “abuse” reports are made in good faith. | ||
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The abuse reporting protections of the Adult Guardianship Act(AGA) apply to all settings including residential care, although the AGA has not traditionally been used in this setting. ([[ | The abuse reporting protections of the Adult Guardianship Act(AGA) apply to all settings including residential care, although the AGA has not traditionally been used in this setting. ([[{{PAGENAME}}#References|14]])The AGA safeguards protect the identity of all good faith reporters. Section 46 (4) of the AGA offers certain employment and professional protections for people who report in suspected abuse or neglect of vulnerable adults made in good faith to a “designated agency” (generally health units in the community).([[{{PAGENAME}}#References|15]]) Residents and other people are protected against intimidation and coercion when an abuse report has been made in these circumstances. See Figure 1. | ||
===Figure 1 Reporting Protections=== | ===Figure 1 Reporting Protections=== | ||
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|- valign=top | |- valign=top | ||
| width="20%" | '''Residents are protected against''' | | width="20%" | '''Residents are protected against''' | ||
| width="20%" | Retaliation ([[ | | width="20%" | Retaliation ([[{{PAGENAME}}#References|16]])(irrespective of who raises the concern). Non specific | ||
| width="20%" | Retaliation – licensee or other person cannot negatively affect service to a resident, <br/>as a result of an abuse report, or intention to make a report ([[ | | width="20%" | Retaliation – licensee or other person cannot negatively affect service to a resident, <br/>as a result of an abuse report, or intention to make a report ([[{{PAGENAME}}#References|17]]) | ||
| width="20%" | | | width="20%" | | ||
*Having identity disclosed (as a reporter)([[ | *Having identity disclosed (as a reporter)([[{{PAGENAME}}#References|18]]) | ||
*Threats, ([[ | *Threats, ([[{{PAGENAME}}#References|19]]) intimidation, coercion ([[{{PAGENAME}}#References|20]]) | ||
*Being penalized (pecuniary or otherwise) ([[ | *Being penalized (pecuniary or otherwise) ([[{{PAGENAME}}#References|21]]) | ||
| Line 85: | Line 85: | ||
| width="20%" | (see CCALA) | | width="20%" | (see CCALA) | ||
| width="20%" | | | width="20%" | | ||
* No action or other proceeding if a report is made in good faith. ([[ | * No action or other proceeding if a report is made in good faith. ([[{{PAGENAME}}#References|22]]) | ||
* Licensee must not take action against employee or agent for reporting ([[ | * Licensee must not take action against employee or agent for reporting ([[{{PAGENAME}}#References|23]]) | ||
| width="20%" | | | width="20%" | | ||
* Having identity disclosed (as a reporter) ([[ | * Having identity disclosed (as a reporter) ([[{{PAGENAME}}#References|24]]) | ||
* Employment or professional repercussions ([[ | * Employment or professional repercussions ([[{{PAGENAME}}#References|25]]) | ||
* Being penalized (pecuniary or otherwise) ([[ | * Being penalized (pecuniary or otherwise) ([[{{PAGENAME}}#References|26]]) | ||
| Line 96: | Line 96: | ||
| width="20%" | '''Others are protected against''' | | width="20%" | '''Others are protected against''' | ||
| width="20%" | (see CCALA) | | width="20%" | (see CCALA) | ||
| width="20%" | No action or other proceeding the report is made in good faith ([[ | | width="20%" | No action or other proceeding the report is made in good faith ([[{{PAGENAME}}#References|27]]) | ||
| width="20%" | | | width="20%" | | ||
* Having identity disclosed (as a reporter) ([[ | * Having identity disclosed (as a reporter) ([[{{PAGENAME}}#References|28]]) | ||
* Intimidation, coercion ([[ | * Intimidation, coercion ([[{{PAGENAME}}#References|29]]) | ||
* Being penalized (pecuniary or otherwise) ([[ | * Being penalized (pecuniary or otherwise) ([[{{PAGENAME}}#References|30]]) | ||
|} | |} | ||
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==Threats of Being Sued== | ==Threats of Being Sued== | ||
Identifying and addressing problems in care facilities is a socially important matter that needs to be dealt with fairly and in a responsive manner. On rare occasion, a British Columbia operator has initiated a defamation lawsuit against a third party who has publicly identified problems in a residential care facility, on the basis that the comments damaged the business’s reputation. When this occurred in another Canadian jurisdiction the operator’s lawsuit was not successful; the court considered it in the public interest to raise these issues. ([[ | Identifying and addressing problems in care facilities is a socially important matter that needs to be dealt with fairly and in a responsive manner. On rare occasion, a British Columbia operator has initiated a defamation lawsuit against a third party who has publicly identified problems in a residential care facility, on the basis that the comments damaged the business’s reputation. When this occurred in another Canadian jurisdiction the operator’s lawsuit was not successful; the court considered it in the public interest to raise these issues. ([[{{PAGENAME}}#References|31]]) | ||
In some instances, a lawsuit may have been initiated to purposefully create a chilling effect so that people will not complain about the quality of care that residents receive. At common law, there are important defences for operators, staff and residents to be aware of in this area, including the truth ("justification"), “qualified privilege”, “fair comment”, and “responsible communication on matters of public interest”. ([[ | In some instances, a lawsuit may have been initiated to purposefully create a chilling effect so that people will not complain about the quality of care that residents receive. At common law, there are important defences for operators, staff and residents to be aware of in this area, including the truth ("justification"), “qualified privilege”, “fair comment”, and “responsible communication on matters of public interest”. ([[{{PAGENAME}}#References|32]]) | ||
The last of these, responsible communication on matters of public interest, is a new defense identified by the Supreme Court of Canada in 2009. ([[ | The last of these, responsible communication on matters of public interest, is a new defense identified by the Supreme Court of Canada in 2009. ([[{{PAGENAME}}#References|33]]) It requires two things: first the published comments must be on a matter of public interest (comments about quality of care in a facility, abuse, or neglect would be good examples). Second, the defendant must show that publisher was responsibly diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. | ||
==References== | |||
#RCR Regulations, s. 60. | |||
#CCALA. s. 22 (3) and Regulations, | |||
#Human Rights Code [RSBC 1996] c. 210, s.43. | |||
#RCR Regulations, s. 48 (b) | |||
#RCR Regulations, s. 89. | |||
#BC Ombudsperson (February 2012). Best of Care Getting It Right For Seniors In British Columbia (Part 2), Public Report 47., F. 117 (“Ombuds, Best of Care”). | |||
#Ombuds, Best of Care, Recommendation 148. | |||
#It can make it harder for the operator to prioritize the concerns in the facility. Some operators may simply leave matters to the last and yet legally be “in time”; other may respond “in time” but in an unsatisfactory manner | |||
#For more information on control of visiting, see Chapter 4 on Legal Issues When Living in Residential Care. | |||
#RCR Regulations, s. 60 (b) | |||
#RCR Regulations, S. 60 (c) | |||
#CCALA, s. 22 | |||
#CCALA , s. 22 (3) - must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service | |||
#The AGA was raised in the residential care case of Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 to prevent family from removing Margot Bentley from the facility when the family disagreed with the staff about spoon feeding her, apparently against her pre-expressed wishes. [“Bentley v. Maplewood”] | |||
#AGA, s. 46 (4) These include, for example protections from being threatened with dismissal, refusing to employ or to continue to employ a person, or discriminating against a person with respect to employment or a term or condition of employment or membership in a profession or trade union. | |||
#RCR, s. 60 (b) | |||
#CCALA, s. 22 (3)- must not alter, interrupt, or discontinue service | |||
#AGA, s. 46 (1) | |||
#AGA, s. 46 (4) (b) | |||
#AGA, s. 46 (4) | |||
#AGA, s. 46 (4) (d) | |||
#CCALA, s. 22 (1) | |||
#CCALA, s. 22 (2) | |||
#AGA, s. 46 (1) | |||
#AGA, s. 46 ( a), (c) and (d). | |||
#AGA, s. 46 (4) (d) | |||
#CCALA, s. 22 (1) | |||
#AGA, s. 46 (1) | |||
#AGA, s. 46 (4) | |||
#AGA, s. 46 (4) (d) | |||
#Leisureworld (Ontario). The use of defamation is considered a SLAPP lawsuit (Strategic Lawsuits Against Public Participation,) basically brought to prevent complaints being raised. | |||
#Canadian Bar Association, BC Branch. Defamation: Libel and Slander , Script 24. Online: http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240 (Last accessed May 1, 2014) | |||
#Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 | |||
#Office of the Ombudsperson Best of Care Part 1 , pg 28-29. | |||
#Report on Assisted Living in BC. BCLI Report no. 72, CCEL Report no. 7 September 2013, pg. [“Assisted Living} | |||
#Assisted Living | |||
#See Bentley v. Maplewood. | |||
#CCALA, s. 7 (1) (c) and (c.1) (i) and (ii). | |||
#Specifically the Health Care (Consent) and Care Facility Admission Act, the Patients Property Act, and the Representation Agreement Act. | |||
#Ministry of Health. Community Care Facilities . “Residents Bill of Rights”. Online: http://www.health.gov.bc.ca/ccf/residents_bill_of_rights.html [“Bill of Rights”] (Last accessed May 1, 2014) | |||
#Bill of Rights. | |||
#RCR, s. 4 (a). | |||
#Bill of Rights , s. 4 (b). Note : A summary of the care facility’s inspection record is also available online. | |||
#Residents’ Bill of Rights, s. 4 (c ) and (d). | |||
#Residents’ Bill of Rights, s. 4 (e). | |||
#Guidelines, p.2 | |||
#Ministry of Health. Home and Community Care. Accountability: Family and Resident Councils. Online http://www2.gov.bc.ca/gov/topic.page?id=96139325762343BB9F289A0C0F73D868 (Last accessed May 1, 2014) | |||
#Ostensibly the reason for not including people whose family are no longer residents at the facility is a fear of “political advocacy”. | |||
#For example Ontario’s Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s. 59-60 identifies the responsibility of the licensee to promote the establishment of the Family Council and respond to Council concerns in a specific timeframe. It sets out specific powers of the Council including rights to see the Licensee’s funding agreement information. | |||
#RCR, s. 38. | |||
#RCR, s. 40 (1). | |||
#Criminal Records Review Act [RSBC 1996] c. 86 | |||
#Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1 | |||
#(2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed May 1, 2014). | |||
#See: Provincial Health Services Authority. Patient Care Quality Office. Online : http://www.phsa.ca/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed May 1, 2014). Also Note : Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] Notes that staff find the PCQ timelines challenging and unreasonable. | |||
#Murtaugh. | |||
#See Murtaugh, pg. 17, Figure 1. | |||
#Murtaugh, pg. 24. | |||
#Murtaugh. | |||
#Murtaugh, p. 21. | |||
#Murtaugh, p. 41 | |||
#"care quality complaint" means a complaint | |||
##(a) respecting one or more of the following: | |||
###(i) the delivery of, or the failure to deliver, health care; | |||
###(ii) the quality of health care delivered; | |||
###(iii) the delivery of, or the failure to deliver, a service relating to health care; | |||
###(iv) the quality of any service relating to health care, and | |||
##(b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being. | |||
#HCCCFAA, s.1 | |||
#HCCCFAA, s.1 | |||
#Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed May 1, 2014) | |||
#Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed May 1, 2014) | |||
#For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted) | |||
#Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed May 1, 2014) | |||
#Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed May 1, 2014) | |||
#Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed May 1, 2014) | |||
#CCALA, s. 15. | |||
#See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558. | |||
#Best of Care, Part 2, pg. 314. | |||
#Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately. | |||
#Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8. | |||
##March 2013 - FH confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected. | |||
##October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012 | |||
##FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act. | |||
#Ombuds, Best of Care Part 2, pg. 311 | |||
#Fraser Health. Inspection Category Definitions. Revised September 7, 2012. | |||
#Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. Online : http://www.health.gov.bc.ca/ccf/publications/a-guide-to-community-care-facility-licensing.pdf (Last accessed May 1, 2014) [ “Community care licensing guide”] | |||
#Ombuds, Best of Care, p. 348. | |||
#http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed May 1, 2014) | |||
#Community care licensing guide, pg. 4. | |||
#RCR, Schedule D, Bill of Rights, s 4 (d). | |||
#Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed May 1, 2014) | |||
#Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012]. | |||
#Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014 ) Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics , 9(1), 28-35. | |||
#RCR, s. 38. | |||
#RCR, s. 40 (1). | |||
#Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed May 1, 2014) | |||
#The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH. | |||
#“Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed May 1, 2014) | |||
#Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed May 1, 2014) | |||
#See Bentley v. Maplewood. | |||
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information. | |||
#Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165. | |||
#Personal Information Protection Act [SBC 2003] c. 63. | |||
#BC Human Rights Code, [RSBC 1996] c. 210, s.2. | |||
#See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities. | |||
#Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. | |||
#Kolb. P.J. (ed.) (2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185. | |||
#British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191. | |||
#McNaughton. , H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed May 1, 2014) [“MacNaughton”] | |||
#In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2010-2011.pdf (Last accessed May 1, 2014). In 2012/ 13, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf (Last accessed May 1, 2014) | |||
#There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints. | |||
#MacNaughton, p.5. | |||
#The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online : http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2011-2012.pdf. (Last accessed May 1, 2014). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36% , pg 9. Online: http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf (Last accessed May 1, 2014) | |||
#BC Human Rights Coalition. Online: http://www.bchrcoalition.org (Last accessed May 1, 2014) | |||
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution . | |||
#See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination. | |||
#Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities , Social Affairs Division. 5 December 2012, HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”] | |||
#WHO Wheelchair Guidelines, pg. 22. | |||
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”] | |||
#Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist ( last accessed May 1, 2014). | |||
#Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions | |||
#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. Online: https://www.ombudsman.bc.ca/images/resources/reports/Special_Reports/no_longer_your_decision.pdf (Last accessed May 1, 2014) [ “No longer your decision”] | |||
#Ombudsperson Act, s. 10(1). | |||
#Ombudsperson Act, s. 10 (2) | |||
#An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly. | |||
#Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”) | |||
#PGTA, s. 17(1) (c), (d), and (e). | |||
#PGTA, s. 17(1) (b). | |||
#See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed May 1, 2014) | |||
#Patients Property Act [RSBC 1996] c. 349. | |||
#These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.” | |||
#BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed May 1, 2014) | |||
#Mental Health Act, sections 25(2), 25(4.1) [ “MHA”] | |||
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed May 1, 2014). | |||
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms. | |||
#MHA, s. 31. | |||
#Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed May 1, 2014) | |||
#Romano, L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7.Online : http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed May 1, 2014). | |||
#See for example. Complainant vs. College of Physicians and Surgeons and 5 Registrants. 2011-HPA-219(a); 2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a) Re: The College of Physicians and Surgeons of British Columbia (Grouped file No. 2012-HPA-G03). Online : http://www.hprb.gov.bc.ca/decisions/2011-HPA-219(a);2011-HPA-220(a);2011-HPA-221(a);2011-HPA-222(a).pdf (Last accessed May 1, 2014). | |||
#VIHA . What is an exemption? Community Care Facilities Licensing Program. Online: http://www.viha.ca/NR/rdonlyres/453B43E6-16A4-4BC7-A441-7B98CAD28996/0/WhatisanExemption.pdf (Last accessed May 1, 2014). See for example, Community Care and Assisted Living Appeal Board. | |||
#CCALA, s. 16. | |||
#CCALA, S. 30 (a) and (b) | |||
#Bill 10, the Seniors Advocate Act, 2013. Online: http://www.leg.bc.ca/39th5th/1st_read/gov10-1.htm | |||
#Seniors Advocate Act, s. 3 (1) [« SAS »] | |||
#SAA, s.3 (2). | |||
#SAA, s.9. “A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on or otherwise discriminate against another person because the other person gives information to the Seniors Advocate or otherwise assists the Seniors Advocate in the fulfillment of the responsibilities of the Seniors Advocate under this Act.” | |||
#Guidelines for the Development of Resident or Family Councils, a Community Care. Ministry of Health. January 2011. Online : http://www2.gov.bc.ca/assets/gov/topic/D3E0B9FAB55484D135A5C5201D799D96/pdf/guidelines_resident__family_councils.pdf (Last accessed May 1, 2014). | |||
{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | ||
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