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Difference between revisions of "Directing Residential Care Concerns to External Bodies"
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Directing Residential Care Concerns to External Bodies (view source)
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====Help with the Process==== | ====Help with the Process==== | ||
The BC Human Rights Coalition in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]]) | The BC Human Rights Clinic (formerly known as the BC Human Rights Coalition) in partnership with the Community Legal Assistance Society (CLAS) runs a human rights clinic program that offers client services and public legal education. It may be able to provide legal advice and representation before this Tribunal. The Coalition has a number of qualifying criteria to determine initial client eligibility focusing on alternative redress processes, assistance from other legal or professional sources, financial status, the nature of the issue and whether there are systemic issues, the merits of the case and likelihood of success, and whether the case raises novel issues of law. ([[{{PAGENAME}}#References|15]]) | ||
Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]])access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy. | Because other processes such as the Patient Care Quality Office and Patient Care Quality Review Tribunal exist in theory as an alternative redress, residents in care facilities may face a significant barrier to accessing this human rights resource. However this is only one of many barriers to drawing on this remedy. Other barriers include the timeliness, ([[{{PAGENAME}}#References|16]]) access to legal representation, the resident’s mental capacity (to retain services, instruct counsel), their physical frailty, and cost implications. Legal advocates in other jurisdictions have typically found older clients, especially those in long term care facilities unwilling to consider using this remedy. | ||
In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]]) | In British Columbia, very few legal resources have had the opportunity to develop experience in arguing or hearing discrimination cases affecting older adults on any protected ground, with the notable exception of age related workplace discrimination. It is only very recently that the Human Rights Tribunal has begun hearing cases involving discrimination in accommodation or services affecting older adults. ([[{{PAGENAME}}#References|17]]) | ||
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The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]]) | The BC Seniors Advocate was appointed in March 2014 and is the first position of its kind in Canada. The Advocate has a broad mandate to identify and examine systemic issues affecting the well-being of seniors, raise awareness about resources available to seniors, and make recommendations to government and others who deliver seniors’ services related to health care, personal care, housing, transportation and income support. The Seniors Advocate does not investigate individual complaints. The position is governed by the Seniors Advocate Act. ([[{{PAGENAME}}#References|44]]) | ||
The Seniors Advocate | The Seniors Advocate is responsible for: | ||
:(a) monitoring the provision of seniors' services, | :(a) monitoring the provision of seniors' services, | ||
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:(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]]) | :(d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. ([[{{PAGENAME}}#References|46]]) | ||
The Seniors Advocate’s power to gather information is largely in relation to developing an advisory council, conducting research and consulting with persons who deliver seniors' services and with the public. The Seniors Advocate may request available data from provincial bodies such as the health authorities on matters that relate to seniors' services. The Seniors Advocate may also request information from public and private sector service providers, other than personal information. In January 2016, the Seniors Advocate released the first provincial report monitoring key services to seniors in health care, housing, transportation, income support and abuse. ([[{{PAGENAME}}#References|47]]) | |||
The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates | The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates in that the law specifically offers a protection from retaliation for people who provide information to the Seniors Advocate. ([[{{PAGENAME}}#References|48]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation. | ||
Like the BC Ombudsperson, the Seniors Advocate is limited by law to making recommendations to government, which public bodies may or may not act on. | |||
==References== | ==References== | ||
#See Bentley v. Maplewood. | #See Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165. | ||
#Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information. | #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. | #Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165. | ||
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#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 the human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191. | #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 the 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 January 9,2016) [“MacNaughton”] | #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 January 9,2016) [“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. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/ | #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. Online: http://www.bchrt.bc.ca/shareddocs/annual_reports/2010-2011.pdf (Last accessed January 9, 2016). In 2012/1, 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.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed January 9, 2016) | ||
#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. | #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. | #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.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). 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.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016) | #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.bc.ca/shareddocs/annual_reports/2011-2012.pdf. (Last accessed January 9, 2016). 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.bc.ca/shareddocs/annual_reports/2012-2013.pdf (Last accessed Januay 9, 2016) | ||
#BC Human Rights | #BC Human Rights Clinic. Online: http://www.bchrc.net/ (Last accessed January 9, 2016) | ||
#The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution . | #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. | #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”] | #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 | #WHO Wheelchair Guidelines, pg. 22. | ||
#Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”] | #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). | #Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist (Last accessed May 1, 2014). | ||
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#PGTA, s. 17(1) (c), (d), and (e). | #PGTA, s. 17(1) (c), (d), and (e). | ||
#PGTA, s. 17(1) (b). | #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 | #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 January 9,2016) | ||
#Patients Property Act [RSBC 1996] c. 349. | #Patients Property Act [RSBC 1996] c. 349. | ||
#These changes are the direct result of the recommendations made in the BC Ombudsperson | #These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.” | ||
#BC | #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 January 9,2016) | ||
#Mental Health Act, sections 25(2), 25(4.1) [ “MHA”] | #Mental Health Act, sections 25(2), 25(4.1) [“MHA”] | ||
#Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed | #Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed January 9,2016). | ||
#Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms. | #Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms. | ||
#MHA, s. 31. | #MHA, s. 31. | ||
#Mental Health | #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 January 9,2016) | ||
#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 | #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 January 9,2016). | ||
#See for example | #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 January 9,2016). | ||
#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 | #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 January 9,2016). See for example, Community Care and Assisted Living Appeal Board. | ||
#CCALA, s. 16. | #CCALA, s. 16. | ||
#CCALA, S. 30 (a) and (b) | #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 | #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) [« | #Seniors Advocate Act, s. 3 (1) [« SAA »] | ||
#SAA, s.3 (2). | #SAA, s.3 (2). | ||
# Office of the Seniors Advocate. Monitoring Seniors Services, 2015. Released January 2016. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016) | |||
#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.” | #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.” | ||
{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | ||
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | {{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | ||
