View source for Six Pressing Issues when Living in Residential Care

==Control Over Visiting==

Control over visiting is a legal issue in some residential care facilities that arises in a wide variety of circumstances and situations. In some cases, a person with an enduring power of attorney or representation agreement may try to control access to the resident by others, and will ask the staff to bar or restrict the person or persons from visiting.
 
The issue of control over visiting also arises when there are disputes or concerns being raised by the family or others about the care being provided in the facility. Families report that after raising concerns, they have encountered situations where they are barred from visiting, temporarily (for a few days or permanently), or their access is controlled (the visit is being “supervised”).
 
===The law and visiting===

The care facility is the resident’s home.  Arguably, the resident and the Operator may both be considered “occupiers” with rights to control access to the place under the Trespass Act. ([[{{PAGENAME}}#References|10]]) The resident has a right to control access to his or her room (much like a tenant)  and the operator or staff has a broad right to control access to premises.
 
The resident’s right to visitors is also very clearly identified within the Residential Care Regulations  and Section 2(e) of the Bill of Rights (“Rights to health, safety and dignity) which states “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 … to receive visitors and to communicate with visitors in private.” 
Sections  57 (1) and (2) of the RCR also underscore the importance of access to the resident, stressing that the Operator

* “must ensure that a parent or representative has reasonable access to a person in care for whom he or she is responsible.” ([[{{PAGENAME}}#References|11]])
* “must, to the greatest extent possible while maintaining the health, safety and dignity of all persons in care, ensure that a person in care receives visitors of the person in care's choice at any time." ([[{{PAGENAME}}#References|12]])
   
The resident’s representative is also expressly recognized under the Act to be given reasonable access to the resident. This right to receive visitors of their preference is well recognized as fundamental to the wellbeing of residents. The risk of social isolation, poorer health outcomes as well as undetected mistreatment greatly increases among residents who have few or no social contacts with people they like having around them.

The capability to demonstrate choice in preference for visitors is usually an easy threshold for many residents to make, whether that is deciding to have the person visit that day, or not at all.

===What does the right to visitors involve?===

At a minimum, the operator’s responsibility to respect the resident’s right to visitors and to privacy includes having a place where the resident can meet people without others around. When the resident does not share a room, that may be easier to achieve.

===Control of access by family===

As will be noted later in the Chapter on Substitute Decision-Making, sometimes family may try to control access to a resident by asking staff to bar certain individuals. In some cases there can be good safety and security reasons to do so, such as where has been a history of violence or financial exploitation in the community, and there is a realistic risk it may continue.
 
However it should be noted that a person granted  an enduring power of attorney has no authority to make personal care decisions such as who may visit the resident; neither does a person who is a temporary substitute decision-maker for health care decisions.([[{{PAGENAME}}#References|13]]) Even a person holding a representation agreement that covers personal care decisions is expected to consult with the resident, follow their values, beliefs, wishes and act in  their best interests. They cannot misrepresent information or try to unduly influence the resident about whether certain people should visit the resident.  While in many cases,  staff can simply ask the resident if the person wants that visitor on this occasion,  the best approach becomes more complex  for cognitively impaired residents who may or may not  recognize the family member or close contact.

===Whose right is it?===
 
One of the questions for visiting is whose right is it? – the residents’ right to receive visitors or the family’s and others‘ right to visit the resident? The visits are the resident’s right, but visiting can serve an important purpose for both parties. It helps the resident maintain connection to family, friends and the community, continuing an important part of the person’s life history and sense of self. It also helps family.

===The facility’s control of access===

Can the facility ever deny access to people? Yes. The facility staff can deny access temporarily if there is a threat by that person visiting to the safety and well being of the resident, other residents or the staff or administration. However, this response has to be proportional to the actual circumstances, and recognizing that some conflict may be expected, especially when long <span class="noglossary">standing</span> issues have not being adequately addressed in the facility.
  
A 2012 Ministry of Health policy communiqué  stresses the need for a balanced response, and sets out the needed steps to achieve that. ([[{{PAGENAME}}#References|14]]) Specifically the Communiqué notes:

“It is recognized that family members and other visitors may be under considerable stress for a variety of reasons, and that a supportive and compassionate approach will be helpful in reducing anxiety.” ([[{{PAGENAME}}#References|15]])
 
The BC Ombudsperson has found that the Ministry of Health and the health authorities have not provided necessary direction to Operators to ensure that the legislated rights of seniors in residential care to receive visitors are respected, and that people were being  unfairly restricted. The BC Ombudsperson made recommendations to make the process fairer and more accountable.([[{{PAGENAME}}#References|16]])  
 
Efforts to restrict a visitor obviously will affect that individual, but in many cases, it can also be considered a form of retaliation against the resident.  Retaliation against the resident when people are raising complaints or concerns is prohibited under the Regulations. ([[{{PAGENAME}}#References|17]])

===Mechanisms to restrict some visitors===

The Adult Guardianship Act allows health authorities to apply for an interim court order restricting a visitor’s access for up to 90 days. ([[{{PAGENAME}}#References|18]]) However this  can only occur  when the health authority  has  reason to believe that the adult is being abused or neglected by that person,  the situation  has been investigated by the designated agency (health authority), and  the designated agency has successfully applied to court to put the restriction in place. ([[{{PAGENAME}}#References|19]])

The residential care regulations authorize the facility operator to control access to visitors in other specific narrow circumstances.  For example, care facility staff can control access to residents for some infectious diseases.  Also the operator must restrict or prohibit a person from accessing the resident “as necessary” in order to comply with a court order, e.g. a peace order/ restraining order, or an injunction. ([[{{PAGENAME}}#References|20]]) Having said that, an operator or the health authority may not use an injunction that a court issued to bar one visitor in one specific situation as implicit or explicit authority to bar other people in other circumstances.
 
Under the residential care regulations,  the Operator is required to record the identity  of any individual who the operator has reason to believe may pose a risk to the health, safety or dignity of the person in care.([[{{PAGENAME}}#References|21]]) However, there must be a reasonable basis for identifying a person as a risk to the resident. Operators also cannot bar individuals from visiting the resident simply because the Operator or staff members consider them as complainers or “trouble”.

====Removal and release of residents====

Operators sometimes point out they have  a legal responsibility to ensure the resident is not  released or removed  from the  care facility to anyone except the resident’s representative or a person authorized by the representative.  ([[{{PAGENAME}}#References|22]]) They also point out that a care plan or “other pre-existing arrangement” can set out who the resident can be released to, or who can remove the resident from  the care facility. ([[{{PAGENAME}}#References|23]]) Both statements are legally accurate, but they can only apply to situations where the resident is not mentally capable of making that decision for herself or himself.  A care plan that purported to make those restrictions without the express consent of a mentally capable adult would not be valid.

===Can the facility control “visiting hours”?=== 

In some cases  care facility administration or staff may try to limit access to certain hours, such as a hospital might. The regulations clearly permit visiting “at any time”. This reflects the fact that residents can have different preferences or “good times of the day”, and that family’s ability to visit may be circumscribed by their employment and other responsibilities.  In some instances, staff may try to restrict visiting to daytime when there is more staff.   In other instances, staff or administration may try to restrict visiting to certain times, because the facility locks its doors at night as safety matter. However, the facility is expected to take an individualized approach to residents’ rights and care planning. Failure to do so may be discriminatory and violate the regulations.

===Can the facility control people from visiting others than “your resident”?=== 

Staff or administration in some facilities may try to prevent family from talking with other residents or other people, on the basis they are simply respecting the residents’ privacy.  Adults are usually able to identify whether or not they want someone around. Unless there has been a specific complaint raised such as the visitor going into another person’s room without permission, the facility should not interfere with socialization or family members talking with others.  Indeed the right and opportunity for families to work together to form a family council or other group for the benefit of residents would be effectively undermined under the guise  of respecting privacy.