The Need for Effective Remedies and Problem Resolution in Residential Care

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Even in the best homes, there are bound to be complaints. If residents or their loved ones know how to complain and have their issues resolved, they are more likely to be happy with the care at the home than if they have difficulties in resolving the problem.

- Jane Meadus, Institutional lawyer, ACE(1)

This chapter identifies some of the legally recognized mechanisms available to address concerns or complaints in residential care facilities. These include residents’ rights statements, resident or family councils, the internal dispute resolution mechanisms for care facilities, as well as the tier of external processes within health systems and law to resolve problems. It highlights the scope of and barriers within the mechanisms, as well as existing protections or safeguards for the resident and others when reporting concerns.

The chapter briefly describes how these various legal complaint mechanisms function, as well as the adequacy of the information that health authorities provide about them. (2)It explores residents’ rights in care facilities as a method for raising concerns and for interpreting issues. It also touches upon some administrative remedies (such as professional colleges and the care aide/ abuse registry), as well as civil and criminal law remedies. To a large extent, these will be general descriptions of the processes, as there can be important differences in the ways that specific health authorities approach these resources.

When looking at resources and recourses for issues or problems that arise in residential care facilities, it will be important to be aware of:

• Who can make use of the problem resolution resource or remedy?
  • Who can complain?
  • Is there a mechanism for situations involving incapacitated persons?
• What is the process?
  • What is the focus of the process?
  • What is its scope?
• What can the resource achieve or do? (make a recommendation, compel action).
• How timely is the resource? (in its response, in getting to an answer, in getting to some needed change).
• Can it achieve systemic change?

The Need for Effective Remedies and Problem Resolution

As a group, the people who live in British Columbia’s long term care facilities today are advanced in age, very frail, physically and mentally vulnerable. They are often socially isolated and will be dependent on others for their basic care. (3) For today’s resident perhaps more than almost any other group, timeliness and responsiveness are very important issues when it comes to addressing problems that may arise in a care facility.

An increasingly high proportion of the residents will have cognitive impairments, but the degree of the impairment varies among residents. People who might be mentally incapable of making certain decisions, may still be quite capable of making others. These can be important considerations in terms of

a) how we approach the problems that may arise in care facilities and

b) how we represent or advocate on behalf of the person or persons.

It is generally recognized that people with dementia can be a high risk group in the community and in residential care. (4) Some who experience harm while in care may be unable to recognize problems or identify the staff person, volunteer, family member or other resident causing the harm. Residents who have cognitive impairments may have difficulty explaining a concern. If they do complain, they may not be believed because of their impairment. Resident to resident harms may also occur in care facilities , sometimes because of the physical environment, unaddressed conditions or as a result of behaviours associated with delirium or dementia. (5)

When older adults move into residential care, they are commonly widowed and their social networks are often very small or non-existent. Without an advocate to help address problems early on, the residents’ vulnerability to mistreatment or poor quality care is considered to be high. Long term care residents also have little or no choice about where they live. Today if a resident experiences a problem, transferring from one long term care facility to another is seldom an option as a result of the overall lack of beds in the long term care system.

As a group, residents in long term care institutions often fear negative repercussions if they speak up. This can range from losing the remaining freedoms and small privileges they have, to delays in care or not receiving needed care, to being threatened that they will be discharged (“evicted”) from the facility. As a result, residents may not necessarily raise concerns about issues that can significantly affect their lives.

Even when residents or their representatives raise a concern and want to make use of a legal or administrative mechanism to address a problem or concern, there are often significant barriers in being able to do so. Left unaddressed, these problems can undermine the quality of life and quality of care for people residing in care facilities.

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

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.