Difference between revisions of "Directing Residential Care Concerns to Health Authorities"
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{{Legal Issues in Residential Care: An Advocate's Manual TOC}} | {{Legal Issues in Residential Care: An Advocate's Manual TOC|expanded=chapter5}} | ||
People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the care is subsidized or not. | People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the care is subsidized or not. | ||
Revision as of 18:12, 24 July 2014
People who are not satisfied with the way that a facility Operator or staff has handled their concern, or who do not want to take the matter directly to a facility, can take the matter to the regional health authority. Their options depend on whether the facility in question is licensed under the Community Care and Assisted Living Act or governed by the Hospital Act. Another factor that makes a difference is whether the care is subsidized or not.
Patient Care Quality Office[edit]
Every health region in B.C. has a Patient Care Quality Office. If a care concern regarding a facility has not been addressed internally, and the person wants to make a formal care quality complaint, they can contact the Patient Care Quality Office in that health region.
Role, mandate[edit]
The purpose of a PCQO is to receive and address complaints from “patients” about the quality of health care they have received (58)(or in some cases, the health care which the person should have received but did not). Residential care facilities licensed or funded by health authorities are covered by the Patient Care Quality Review Board Act.(59) The Office can receive a wide variety of care quality concerns. Most by definition relate to care – for example, deficiencies in care, misdiagnosis, or medication-related concerns. The second most common type of matters dealt with by the PCQO relate to the health care provider’s attitude and conduct, followed by accessibility (which includes issues such as eligibility to be admitted to a care facility, wait-times for treatment, test results and the availability of services), lack of communication (such as explanation about medical conditions or procedures), and “environmental issues” (which includes matters such as food services, and housekeeping).
Scope[edit]
A local PCQO can only accept and deal with complaints that relate to that particular region (health authority). Complaints that relate to a different region or health authority may be referred to the PCQO in that region. In some instances, jurisdiction can be difficult to determine - for example if a matter affects a couple who want to live together in residential care, one of whom is currently in one health authority and the other who is another, which health authority’s PCQO has the jurisdiction?
There are certain matters with which a PCQO cannot deal. These are referred to as “external complaints”, and the PCQO is expected to help identify that appropriate body to which the concern should be addressed.
Process[edit]
Complaints to the PCQO can be made verbally, in person, by phone or in writing.
The Office is expected to deal with the complaint promptly and fairly and has specific timeframes in which to work. The PCQO must acknowledge receipt of complaints in two (2) business days and complete the investigation within 30 business days.
The complaint process is not supposed compromise access or service. Once the complaint is formally registered, the Office works with the complainant to resolve the issue. The Office is required to respond within 40 business days (8 weeks) to explain any actions taken and decisions made. (60) If the Office cannot help with the complaint, they may refer to an agency or body who can (“external complaints”).
The PCQOs in each health authority must report the outcomes of their investigations to the person who made the complaint, and let them know they have a right to a further review by the local patient care quality review board if they remain dissatisfied.
Available remedies from PCQO?[edit]
The way that the problem may be resolved by the PCQO will depend on the specific issue at hand, and the willingness of the parties. It is difficult to determine what remedies are available to the PCQO and what authority it actually has. In most cases, people bringing concerns to the PCQO are interested in resolving the matter for their situation, plus preventing its occurrence for others. (61)
Review of Complaint or Concern[edit]
If the person is dissatisfied with the response or “resolution” of the complaints brought to the PCQO, the matter can be brought to the attention of the Patient Care Quality Review Board discussed below. The Patient Care Quality Review Board can also reviews complaints if the Office has not responded to the complainants within 40 business days.
Use[edit]
Only about seven percent of all the 4558 complaints made to the Patient Care Quality Offices throughout the province in 2012 related to residential care.(62) A 2012 review of the PCQO and PCRB systems noted there are systemic challenges in being able to effectively serve people in residential care or residents of small communities. Personal relationships and fear of retribution were seen as significant barriers to any complaint process. (63)
Also the legislation generally requires PCQO complaints to be handled on a first-come, first-served basis; this does not facilitate triaging according to case severity. (64) The program predominantly serves English-speaking Caucasians. (65) It has been pointed out that the intended focus of the program is unclear– is it on providing a process for managing complaints, resolving complaints or identifying opportunities for improvement? (66)
Patient Care Quality Review Board[edit]
If a concern or complaint is not satisfactorily resolved by the local Patient Care Quality Office, the person can have it independently assessed by the Patient Care Quality Review Board. The Review Board is a separate organization that reports to the Minister of Health. The first boards were appointed in October 2008.
These Review Boards are governed by the Patient Care Quality Review Board Act and External Complaint Regulation in how they review complaints as well as what can and cannot be reviewed. The boards may review any “care quality complaint” regarding services funded or provided by a health authority, either directly or through a contracted agency. (67) The boards may also review complaints regarding services expected, but not delivered, by a health authority (for example, a complaint regarding a cancelled surgery). The term “care quality complaints” also refers to the specifics of the health care services as well as the quality of the health care or “services related to health care”.
Important: The boards may only review complaints that have first been addressed by a health authority’s Patient Care Quality Office.
"health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes
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The Process[edit]
The individual will be asked to provide basic contact information, details about the complaint, the Patient Care Quality Office's response, other steps taken to resolve the issue and the outcome, or remedied desired, all of which the review board needs in order to process the request.
Who Can Complain[edit]
Under the Act, two types of people can lodge a complaint to the PCQO and PCRB:
- (a) the individual “to whom the health care or service was delivered or not delivered” (the “patient”) and (68)
- (b) a person “authorized under the common law or an enactment to make health care decisions in respect of that individual, the person having that authority”. (69)
Note: Third Party Consent Form
If the person is making the review request on behalf of another individual, the review board must obtain the consent of that person before proceeding with a review (Third Party Consent Form). By law, the review board cannot collect, use, retain or disclose a person's personal health information without his/her consent. This is a significant problem, as most people in care would not be able to consent and do not have people who can legally act on their behalf.
Scope[edit]
Are the rights listed in the Bill of Rights, “health care services” and therefore do they come under the scope of the Patient Care Quality Review Board?
Yes. The Patient Care Quality Review Board website specifically notes the existence of the Bill of Rights and points out that people can make formal complaints to the PCQO on these matters. (70)
What can a Patient Care Quality Review Board review?[edit]
(71) The boards can review:
- complaints about the quality of any health care service under the jurisdiction of the health authorities (these complaints must first have been addressed by a health authority’s local Patient Care Quality Office),
- complaints about services that were expected, but were not delivered by the health authority,
- complaints that have not been addressed by the Patient Care Quality Office within 40 business days, and
- matters directed by the Minister of Health.
There are a number of legal matters related to care quality that the Review Board will not review. For residential care, these include complaints about:
- involuntary admissions under the Mental Health Act (that would include involuntary transfers from the hospital to a residential care facility, or vice versa)
- a decision by a Medical Health Officer or Licensing officer under the Community Care and Assisted Living Act
- a decision of the Community Care and Assisted Living Act Appeal Board. (72)
The Review Board also cannot hear certain matters related to:
- health professionals providing services in private practice,
- health care or related services paid for entirely by the “patient, or by the patient and a private insurer (e.g. dental care, alternative therapies, fully private pay services)
- health care or services provided in privately funded facilities, unless these are provided under contract with a health authority.
Residential Care Issues[edit]
Examples of residential care issues brought to the Review Board to date include: infection outbreaks; a resident’s loss of a subsidized residential care facility bed after being discharged from acute care facility; concerns about assisted bathing and toileting at a residential care facility. (73) Although the PCQRB states that only three of two hundred requests for review received in 2012/13 dealt with residential care, it is clear that some concerns seen in acute care such as falls from beds would also come within scope in residential care.
Recourse[edit]
The review board can make a broad range of recommendations. For example, they may recommend that the health authority’s Patient Care Quality Office reconsider the complaint, or may recommend specific changes in policies, procedures and practices to improve patient care quality. (74)The review board may ask the Minister of Health to consider directing the Health Authorities as a whole to take certain steps. The Boards may comment on the appropriateness of fees charged by a health authority, but will not make recommendations regarding reimbursement.
A health authority might be asked to review a current protocol (such as a delirium protocol or a falls prevention protocol), with specific suggestions on how to implement it better. Administration of the facility might be asked to meet with the resident’s family to review a care plan. Nonetheless, the people expressing the concern about the quality of care may not feel the actual situation in the facility has been resolved. For example, in one Patient Care Quality Office case about perceived negligent care, the recommended “care plan review” led to the resident being discharged from the care facility to the family. (75) That approach does not address the underlying issue of the quality of care in the facility.
The review boards are required to submit an annual report to the minister. In addition each PCQRB can also submit recommendations for improving patient care to the minister or to the health authority.
Volume[edit]
The PCQO received about 5000 care quality complaints in 2011/12 and over 4500 in 2012/13. Optimistically this decrease may represent improvements in systems. However it may reflect frustration over whether or not the process is effective. Less than 2% of the complaints ( 90 cases in 2012/13) received by the PCQO were reviewed by the Patient Care Quality Review Board.
Community Care Licensing Offices[edit]
Community care licensing offices are staffed by licensing officers and overseen by medical health officers. Licensing officers are responsible for ensuring that residential care facilities licensed under the CCALA meet the requirements of that Act and its regulations. Licensing officers carry out the routine inspections for care facilities.
Anyone who is concerned that a facility is not meeting the CCALA requirements can complain to the licensing office for that area. By law medical health officers must investigate every complaint that alleges that a residential care facility licensed under the Act is not fully meeting the legislated requirements. (76)In practice, however, the responsibility for conducting these investigations is delegated to licensing officers who are employees of the health authorities. The duty of the licensing office for the inspections is owed to the public, as opposed to individuals. (77)
Advocacy Points[edit]
Residents, families or others concerned about the care in a residential care facility may have difficulty expressing their concern in a way that makes sense or appears to fall within the jurisdiction or the responsible body or authority. Advocates can help by
- Identifying that the licensed facility is not fully meeting the legislated requirements, and where possible,
- Identifying specific areas where the requirements are not being met by reference to the CCALA or the Regulations.
The Act gives medical health officers and their delegates (the licensing officers) the authority to examine any part of a facility and to inquire into and inspect all matters concerning its operations, employees or residents. Medical health officers can also require operators to produce records. Currently health authorities receive very few formal (licensing) complaints relative to the number of licensed facilities and beds.(78)
The Ombudsperson has criticized the fact that private hospitals are not required to be regularly inspected like residential care facilities, and has made recommendations to the health authorities on this matter. (79) Fraser Health now states it is conducting these regular inspections for private hospitals. (80)
Complaints against Private Hospitals[edit]
The CCALA does not apply to facilities governed by the Hospital Act. Licensing officers are not authorized to investigate complaints about those facilities. As a result, older adults residing in facilities governed by the Hospital Act have fewer options for pursuing complaints than older adults who live in CCALA facilities, even though they have the same care needs delivered by similar persons in similar circumstances. (81)
How Licensing Complaints Are Investigated[edit]
A Guide to Community Care Facility Licensing in British Columbia outlines the Ministry of Health’s draft policy on investigation of licensing complaints. The health authorities have also developed their own policies to guide licensing investigations as well.
When a person complains that a facility is not complying with the CCALA or the Residential Care Regulations , licensing officers are expected to document and respond to the complaint in a timely and appropriate fashion. The specific steps that the licensing officer uses are:
- determine whether the concern falls within their jurisdiction, and contact the agency that funds the facility, if applicable. [If the complaint involves a possible criminal matter, the licensing officer is expected to contact the police.]
- determine the nature of the complaint and its urgency, including whether anyone in care is at risk and, if so, to what degree.
- prepare an action plan, notify the facility operator of the allegations, and investigate.
When conducting investigations, licensing officers must decide whether, on the balance of probabilities, an operator has contravened the CCALA or its Regulations. In order to do so, licensing officers collect and analyze evidence.
This may involve conducting a “non-routine” inspection of the facility in question and interviewing those involved in the allegation. Licensing officers are expected to document all of these steps. Violations are categorized under one of ten categories: Care and/or supervision; Hygiene and communicable disease control; Licensing; Medication; Nutrition and food services; Physical facility, equipment and furnishings; Policies and procedures; Program; Records and reporting; and Staffing. (82)
If a licensing officer concludes that a contravention has occurred, the officer must then decide whether to recommend that the regional medical health officer take any steps to adjust the facility’s licence (conditions, suspend or cancel). Medical health officers have the authority to attach terms and conditions to a licence, suspend or cancel a licence. Terms and conditions are requirements above and beyond those of the Act or Regulations.
- “Terms and conditions may be used when a licensee needs more direction than the statutory requirements to ensure that the health or safety of persons in care is properly maintained.” (83)
Some examples of licensing conditions include
- requiring a facility to develop a plan to ensure appropriate care,
- requiring a facility to improve its documentation,
- temporarily suspending a facility’s ability to admit new residents,
- requiring a facility to increase the hours of its on-site manager, (84) and
- requiring the facility to have a new manager. (85)
Compliance with terms and conditions is required to continue to operate the facility. Terms and conditions are written on the facility licence and posted at the facility. The operator can request reconsideration (or seek an appeal) when terms and conditions are attached to the license.
The Approach: Education and Progressive Compliance[edit]
According to the Ministry of Health, the purpose of community care licensing is to prevent risk of harm. This is accomplished through working proactively with applicants for a community care facility licence, assessment of applicants, ongoing monitoring of the facilities, risk assessment, and inspection of licensed community care facilities. (86)New facilities are automatically considered high risk because they do not have a track record.
By law, the most recent routine inspection record is required to be accessible to residents and families. (87) However, the publicly available records are written and coded in a way that is not useful to the public to determine either the nature of the violations or how serious they are.
Local Ethics Committees[edit]
Frequently health care matters in care facilities, particularly related to consent and treatment can lead to disputes between the health care providers and residents or their families, between family members or between health care providers At least three health regions (Interior Health, Vancouver Coastal and Fraser Health) have a Clinical Ethics Committee or Clinical Ethics Services. (88)If the health care matter is unresolved by the facility staff or administration, the adult’s family or the health care provider can request a review by the Clinical Ethics Committee. In theory, the Committee can offer confidential case consultations for patients, residents, families and/or health care staff members or teams. The Committee can review policies and guidelines entailing sensitive or disputed ethical implications.
The committee may be able to help with several types of issues including informed consent; improving communication about ethical concerns among health care team members; end of life decision making; advance directives/advance care planning; and decisions about clients living at risk. Interior Health policy specifically notes that health care providers must not provide major health care until the dispute with a temporary decisionmaker is resolved. (89) Each committee sets its own process.
It is not clear whether residents or families are aware of these as a problem resolution resource. Recent Canadian research on informal consultations suggest that while the consultations may help health care providers think through ethical considerations, they tend to be of less help to patients or families. Indeed patients are rarely involved in the deliberations involving their lives and families only slightly more often.(90)
The BC Care Aide and Community Health Worker Registry[edit]
Under the Residential Care Regulations , operators have a responsibility to properly screen prospective employees (verifying their qualifications, character references, and conducting a criminal record check) before hiring, and to assure that people have the competence to carry out their defined duties.(91) There is also an ongoing responsibility to monitor employees’ performance.(92)
In January of 2010, British Columbia became the first province in Canada to implement a registry for care aides and community health workers. The BC Care Aide & Community Health Worker Registry was established to help improve the educational standards of care aides (“health care assistants” or “HCA”s) in the province. Strictly speaking it is not a problem solving resource for residents, families, or advocates; but it can and is used by care facility operators to address problems that arise.
The Registry is a database of credentialed or “registered” care aides and community health workers working for, or wanting to work for, publicly funded employers in BC. (93) Access to the Registry is restricted to specific registered employers; all names and information contained in the Registry are confidential. Operators may use the Registry to assist them in screening candidates for positions.
Currently, any care aide who wants to seek employment with a publicly-funded health care employer must be registered with the Registry. So must the employers; some private employers have opted to participate voluntarily. To some extent, the Registry operates as a Regulatory College, although without the legal recognition accorded to other health professions. Instead it operates under a Letter of Understanding with bargaining associations. (94)
The Registry’s role is three fold: to ensure that all HCA students in the province receive the same level of training, to register those that have this training, and to track and respond to cases of alleged “abuse” by health care aides. The Registry has the ability to “de-register” care aides, and these individuals are then permanently prevented from seeking further positions with publicly-funded employers.
The Process[edit]
Operators will have their own internal process for responding to suspected or actual abuse or neglect of a resident. They also have specific reporting responsibilities to the Ministry of Health. Under the terms of its contract with the Ministry of Health or with a health authority, an employer who receives public funding is required to report to the Registry any employee who has been suspended or terminated for alleged abuse of a client, patient, or resident. This report must be made in writing within seven (7) calendar days of the employee being notified of the suspension. A copy of the report is sent to the union if the employee is represented by a union. (95) The circumstances are investigated by the Registrar’s office.
The actual investigations are undertaken by five investigators with experience in labour relations and mediations appointed by the Registry’s Advisory Committee. The cost of the investigation is borne jointly by the employer, and the union. If the staff person is not unionized, the costs are borne by the Registry.
The Challenges[edit]
Although the new registry (and “deregistering”) system exists, a recent review pointed out that it has several limitations. The mandatory registry requirement for employment only applies to care aide workers seeking employment in publicly funded facilities. Unlike a Regulatory College, the Registry can only investigate serious misconduct (“abuse”) and cannot address other workers’ “competence” matters. The Registry is unable to compel reporting of abuse or operators’ participation in the investigatory process.
Some operators feel the investigation process lacks transparency and the cost of investigation is burdensome. As a result, some employers may simply circumvent the investigation/ de-registry process by terminating the employee without necessarily reporting the incidents. This leaves these workers open to seeking employment elsewhere in health, possibly in private care. (96)
Other issues that have been raised about the registry relate to: privacy considerations when it comes to sharing information for investigation, which affects investigators’ ability and authority to access health records, witnesses and licensing information; perceived partiality of investigator; multiple investigatory streams, and conflicting results; perceived loopholes in various processes; as well as questions about sustainable operating funding. There are also important philosophical differences around expectations between operators and the investigators whose background is in labour relations and mediation (“zero tolerance”, “just fire them” versus “graduated discipline”, without aides necessarily being dismissed and deregistered).
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014. |