Six Pressing Issues when Living in Residential Care

Medications

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Families often express concerns that antipsychotic drugs (1) and sedatives are being prescribed to residents with dementia without the knowledge and consent of the substitute decision-maker. Some residents may come into residential care facilities from hospital where they have been prescribed the antipsychotics. In some cases, the apprehension is over the use of these drugs (particularly the “atypical anti-psychotics”), because of health warnings from the manufacturers and Health Canada. (2) These powerful medications come with significant risks, such as falls, bedsores, blood clots and potentially fatal reactions to the drugs. Many residents are on the anti-psychotic drugs without a doctor's diagnosis of psychosis.

The issue is not only use of the drug, but how it interacts with the many other medications that the resident has been prescribed. About 53 percent of seniors in long term care facilities take five or more different drugs on average for their various health conditions. (3)

In many cases, the family or substitute decisionmaker’s concern is the fact that there has been little if any consultation with them about potential risks versus potential benefits. They only learn about medication when they begin to see notable changes in the person’s behaviour (e.g. falls, increased sedation, confusion). Typically there has been no effort to obtain informed consent from the resident (or acquiescence is treated as consent), or from their substitute decision-maker prior to commencing treatment.

In some cases families are effectively told they must consent to the use of the particular medication. If they do not, the resident can no longer stay there, and will be discharged back to family’s care or to another facility. This approach violates basic principles of health care consent. It violates the prohibition of non- retaliation, and it is illegal.

Medication administration is health care treatment and requires informed consent from the resident, or the resident’s substitute decision-maker if incapable. The primary issues are:

a) matters of fact - Is the particular medication appropriate for this individual? and

b) rights or process related matters - Has informed consent been properly obtained in advance of the administration of the medication?

Health care consent is described in Chapter 7 (Consent & Capacity) and Chapter 8 (Substitute Decision-Making).

The pharmacological and geriatric literature is very clear that anti-psychotic medications are often inappropriate for older people, as these medications can have serious side effects and sometimes lead to premature death. If an anti-psychotic medication used to manage behaviours results in restraining or restricting a resident’s movements, it is a restraint. That means its use must be consistent with the Residential Care Regulations and other provincial legislation on the use of restraints.(4)

In 2011, the Ministry of Health carried out a review and found that in a ten year period, anti-psychotic drug use had increased significantly in British Columbia’s residential care facilities. In 2000/1, about one in three residents was being prescribed an anti-psychotic drug; by 2010/11 over one half of all the residents were. Provincial data from 2014/15 suggests that one in three residents are prescribed anti-psychotic medications.(5) The use of anti-psychotic medications in long term care has also been recognized as high and problematic in other Canadian jurisdictions.

In June 2013, the BC Patient Safety and Quality Care Council began the CLeAR initiative. The goal is to reduce the number of seniors in residential care on anti-psychotic medications by 50% across British Columbia by December 31, 2014). It is a province-wide, voluntary initiative. (6)

In 2012, the Ministry of Health developed best practice guidelines to help health care providers respond more appropriately to the behaviours commonly seen in residential care. The guidelines require the staff to:

• focus on a good assessment with this particular resident to determine, for example, what might be causing the behaviour,
• look at risks compared to the benefits of various options,
• try out different kinds of potentially more effective approaches, and less risky interventions, plus
• focus on informed consent prior to treatment. (7)

The guidelines are beginning to be used by some care facilities, but the legal issue of respecting informed consent for medications generally and anti-psychotic medications in particular may continue to be elusive for some time.

In the area of medication use in residential care, it is equally important to have a clear understanding of the multiple purposes for which medications are prescribed and appropriately used for residents with complex and chronic health conditions. The Office of the Seniors Advocate has noted that a large proportion of residents are being prescribed antidepressants without necessarily having a diagnosis of depression. (8) Antidepressants are often used for pain control for people experiencing chronic pain and are internationally recognized as a mainstay in the treatment of many chronic pain conditions — even when depression is not a factor. (9)

Health Care Consent: A Quick Overview

Before providing any healthcare treatment, which includes prescribing medication, all health care Operators (physicians, nurses, therapists, dentists, etc.) are required by law to seek and receive valid and voluntary consent from their patient (if the patient is capable). If the patient is not capable, consent must be obtained from their authorized decision maker before providing treatment. Consent must be specific to the treatment being proposed. Legislation also requires health care Operators to fully inform patients (or their authorized decision maker) of the risks and benefits of the treatment they seek. Voluntary, informed, consent from a capable adult must be sought except in particular circumstances. - A Review of the Use of Antipsychotic Drugs in British Columbia Residential Care Facilities, p. 11.

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. (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.” (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." (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.(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 standing 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. (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.” (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.(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. (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. (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. (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. (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.(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. (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. (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.

Abuse and Neglect

The Residential Care Regulation requires an operator (licensee) to immediately report to the medical health officer (Community Licensing) if there is an allegation of abuse or neglect of a resident. However, it is very likely that incidents are internally filtered and will be under reported. According to 2014/15 data provided by the health authorities to Office of the Seniors Advocate, there were only 121 abuse or neglect incidents reported to licensing for the over 27,000 residents in care throughout the province. (24)

What Do We Mean?

In everyday language, the terms such as “abuse” and “neglect “ or “mistreatment” loosely refer to a wide range of negative behaviours, actions or inactions in residential care by staff, administration or others that can undermine the residents’ dignity, or cause them physical, emotional or financial harm. “Neglect of a resident” as the public often thinks of the term may also refer to substandard care, including poor housekeeping, hygiene concerns, delay of treatment, ignoring or slow response to call bells, lack of help with to the washroom, being forced to use incontinence products, inadequate pain treatment, insufficient staffing, poor nutrition, and residents going without a bath for weeks. It can sometimes take extreme forms as well, e.g., a resident lying in urine and feces for extended periods of time, a resident who is malnourished or who develops pressure ulcers due to lack of appropriate care.

Emotional abuse can show up as the usual forms seen in the community, such as yelling and threatening the person. However, there are special forms of inappropriate treatment or mistreatment that show up in residential care. These are either intended to personalize, humiliate or degrade the person, or use power and control over the resident. These forms of emotional abuse include, for example if a staff member, operator or other person working in the facility

• belittles the resident when the person’s clothing or incontinence brief is wet or soiled;
• makes fun of the resident’s mental or physical disability;
• makes racial, cultural or sexual orientation slurs;
• threatens to kick out (“discharge”) the resident if she or he does not “cooperate.”

Within the residential care regulations, the terms “abuse” and “neglect“ have very specific meanings. These focus exclusively on harms to “persons in care “ (residents) by people who are “not persons in care“ (staff, administration, volunteers, family, strangers).

The abuse definitions specifically exclude harms by residents to other residents. These resident to resident harms are also considered important care issues and they are “reportable” to Licensing. They are simply recognized as having different causes and needing different responses than do the abuse or neglect situations. (25)

“Abuse” and “neglect “in residential care generally means a deliberate intention to harm a resident, or a high degree of recklessness or indifference to the resident. Any other harms resulting from lack of understanding, poor procedures or documentation, inadequate training, or inadequate staffing are more commonly characterized as “quality of care” concerns or issues related to “non-compliance with standards”. However, the line between neglect and poor quality of care is not always clear in residential care.

The terms “abuse “ and “neglect “ as used in the Residential Care Regulations are also somewhat different than those used by the Adult Guardianship Act, where the definitions are statutory thresholds for action and focus on deliberate harms causing significant loss. See Figure 1. The Residential Care Regulations (s. 52 (2))also prohibit the use of food or fluids as a reward; they are considered a type of mistreatment.

Figure 1

Abuse and Neglect Definitions Under the Residential Care Regulations	Abuse and Neglect Definitions under the Adult Guardianship Act
"emotional abuse" means any act, or lack of action, which may diminish the sense of dignity of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement;	"abuse" means the deliberate mistreatment of an adult that causes the adult (a) physical, mental or emotional harm, or (b) damage or loss in respect of the adult's financial affairs, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;
"financial abuse" means (a) the misuse of the funds and assets of a person in care by a person not in care, or (b) the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or his or her parent or representative;
"neglect" means the failure of a care Operator to meet the needs of a person in care, including food, shelter, care or supervision;	"neglect" means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;
"physical abuse" means any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;
"sexual abuse" means any sexual behaviour directed towards a person in care and includes (a) any sexual exploitation, whether consensual or not, by an employee of the licensee, or any other person in a position of trust, power or authority, …,but does not include consenting sexual behaviour between adult persons in care;

Addressing abuse or neglect when it happens

Residential care facilities are expected to have written policies in place to address and respond to abuse and neglect of residents. When a resident in a residential care facility is involved in a reportable incident, the operator must immediately notify

• that person’s representative or contact person,
• the medical practitioner or nurse practitioner responsible for the person’s care,
• the regional medical health officer and
• The program that provides funding for the resident, if applicable.

The operator must also complete an Incident Report Form and send it to the health authority’s community care licensing office immediately.(26)

The response to the abuse or neglect situation will depend on the type of harm and who was involved. The operator has a responsibility to investigate the allegation or the known situation. Staff if involved may be suspended, with or without pay during the investigation and in some cases may be fired, although if unionized, they may grieve the response. If a matter is a crime, facility operators are expected to call the police.

Abuse or neglect situations involving care aides that the care facility operators find are supported by the evidence, are expected to be reported to the BC Care Aide & Community Health Worker Registry to be further investigated (Note : While operators cannot be compelled to report to the Registry, a duty to report is part of the contractual responsibilities of publicly funded operators to the Ministry of Health or health authority, see: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx). That report to the Registry is to be made with seven days of the suspected staff member being suspended or terminated, pending investigation. (For more information on the process see Chapter Three “Rights, Remedies and Problem Resolution”).

If the incident is considered well founded, the care aide worker may be de-registered, which will prevent him or her from working in publicly funded care facilities in the province. Care aides cannot be de-registered for general competence issues.

Video-surveillance and abuse or neglect

Family members sometimes suspect that abuse or neglect of a resident may be happening in the facility. The resident may show possible indicators such as

• repeated falls,
• unexplained or poorly explained bruises,
• a change in behaviour (such as withdrawing in the presence of certain staff).

However, there can other causes.

In some cases, family members have tried to determine whether resident abuse or neglect is occurring by placing a hidden video camera in the resident’s room. This is rarely a first response; it typically occurs when the possible indicators are present and

• the resident has cognitive impairment or communication difficulties making it difficult to determine the facts,
• family feel their questions or concerns about specific situations have not been adequately addressed, or
• situations have not been adequately investigated internally by the operator or externally by oversight bodies.

There is no provision in the residential care regulations, the privacy, consent or substitute decision laws that specifically permits or prohibits this covert surveillance. There are distinctions in law between video surveillance in the workplace by the employer and video surveillance in the person’s home by those with the authority to consent, as well as video surveillance to detect crime. (27) There are also distinctions made between overt and covert surveillance. If an operator tried to prohibit these efforts by family or others, it would most likely lead to greater concern (“What are they trying to hide?”).

The use of this type of video surveillance raises a wide variety of legal issues related to the:

• ways of promoting resident’s safety
• intrusion on the resident’s privacy,
• consent (obtaining consent, including who can consent to the recording and what type of consent is needed)
• the rights of third parties (staff who are not suspected of harm who may also be recorded),
• use of the information - how the recorded information is subsequently used or displayed (e.g. uTube) by the person who made the recording, as well as
• interpretation and evidentiary matters for the health authority and law enforcement (“what does the tape actually show?”).

The overarching issue is:

• What is the objective?
• What is the means used? and
• Is there a more effective and less intrusive way of meeting these concerns?

Use of video surveillance in the privacy of a resident’s room may or may not lead to greater resident freedom from abuse or neglect. The issue of whether videotaped surveillance put in place by family can be used as legal evidence is beginning to come before the criminal courts and administrative bodies. (28)

Resident to Resident Harms

Care facility operators have a general responsibility to promote the health and safety of all residents, and to protect them from harm. This includes harms from other residents. Resident to resident conflict or aggression can have a significant effect on the emotional and physical well-being of the residents and others in the facility.

It has been estimated that 11 per cent of the care facility residents are “aggressive” at some point. (29) Drawing on available data, the Office of the Seniors Advocate concluded there were between 425 and 550 reports throughout the province of resident to resident aggression causing harm in 2014/15. (30) In some instances this can lead to serious injury, even death. The geriatric literature now uses the term “responsive behaviour” to recognize the fact that “aggressive“ residents are often responding (inappropriately) to situations that are frightening to them or causing confusion, Residents may be responsive for many reasons, often it is because of confusion caused by dementia, inadequately addressed pain or an underlying medical condition that is not under control. The resident to resident harms can occur in general residential care facilities as well as those with special dementia units.

The Residential Care Regulation requires care facility operators to report “aggressive or unusual behaviour”. This is defined as “aggressive or unusual behaviour by a person in care towards other persons, including another person in care, which has not been appropriately assessed in the care plan of the person in care.”(31)

Resident to resident harms typically occur because of three types of factors intersect. There are individual resident factors, facility factors and factors from the broader care system. (32) The resident factors for aggression generally include:

• where the residents are cognitively impaired (particularly if they have frontal lobe dementia which impairs inhibitions and their ability to control their behaviour),
• certain medical conditions and psychiatric illness (e.g. under-addressed pain and depression).

It is very common for residents who seem to be aggressive to also show signs of depression and delirium. (33) Other factors can include their personality and their life experience (presence of trauma history, contact sports, the way they have resolved conflicts throughout life).

If there has been a good assessment of the resident prior to coming to the facility (including communication with family or key contacts about whether the person showed aggression in the community), it should be evident whether or not these factors are present.

Resident assessment, however, is an ongoing process and is always required as the person’s health and conditions change. Worksafe BC has indicated that sometimes community service providers are reluctant to share information about a prospective resident’s tendency to respond aggressively, out of concern that the disclosure might breach provincial privacy law. However that it not the case; information about a prospective or current resident’s violence risk can be properly disclosed on a “need to know basis.” (34)

The geriatric literature also shows a significant amount of resident aggression can also be reduced with staff trained in dementia care and particularly with training on “responsive behaviours”, such as “P.I.E.C.E.S.” , U – First, Montesorri, or similar programs, as well as staff trained with “Code White” protocols. (35)In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. (36) In these guidelines, medications to control behaviours are only used after other less restrictive (but hopefully more effective) methods have been tried and ruled out.

Several facility factors are also important in heightening or reducing the level of resident aggression in that facility. These include its size; whether the environment is over stimulating or under-stimulating; and the facility’s culture (whether it is institution focussed or uses a person centred care approach). Equally important are the staff factors - the staff members' style of approach to residents and work, the numbers and mix of staff, their training and available support, workplace wellness, and leadership factors.

Broad system factors such as the residential care process also have an important role. For example, if policy requires residents to be admitted to the first available facility without also having a good assessment of whether the person is appropriate for that facility, or under what circumstances, this may create special risks for that person, other residents and staff. If the broader societal view of residential care treats the needs of residents to safe and appropriate environments as a low priority, or simply views residents as physically frail, and therefore unlikely to cause harm, resident aggression is more likely to occur and recur.

It may not be possible to eliminate all resident to resident aggression. However, there are a variety recommended policy responses to help reduce it. These include to:

• increase the staff levels in the facility;
• have specific staff in-house in every care facility with behaviour care expertise;
• have more designated behaviour units to care for residents with severe aggressive behaviours; and,
• have regular and recurring behaviour-related training for all care staff.

Resident to resident harm has begun to raise a wide array of complex legal and health care planning issues. For example,

• what is the best way to approach situations when a person with cognitive impairment in the community and residential care settings has caused injury or death?
• should all situations require a police response? If so, what is the nature of the most appropriate justice and health system response?

This becomes particularly relevant when cognitively impaired resident does not appear to have the requisite mens rea for assault, the mental capacity to instruct counsel, or fitness to stand trial. Unlike younger adults who have become aggressive as a result of a mental condition, the difficulty for many residents is that dementia does not get better. Having a safe and appropriate place for them to live the last months or years of their lives, without leaving other residents at risk of harm becomes pressing.

Reporting Responsibilities

The Residential Care Regulations set out a number of mandatory situations (referred to as “reportable incidents”) where the operator (and consequently the staff) must notify certain authorities or key people outside of the facility. In some cases these incidents are reported to the Ministry of Health (generally to Community Care Licensing), but in other instances they are also made to the resident’s representative, or contact person. (37) These incidents include:

• “abuse”, including emotional, financial, physical, and sexual abuse
• “aggression between persons in care”
• "aggressive or unusual behaviour"
• "attempted suicide"
• "choking"
• "death of a person in care”;
• "disease outbreak or occurrence"
• "emergency restraint"
• "fall”
• "food poisoning"
• "medication error"
• "missing or wandering person"
• "motor vehicle injury”
• "neglect”
• "other injury"
• “poisoning"
• "service delivery problem"
• "unexpected illness"

Each term included in incident reporting has a very specific regulatory definition and meaning in residential care. See the Appendix for definitions.

The primary concern expressed by families is that although incident reporting is required by law, it may not occur. Alternatively, if family is called about an incident as required by law, the seriousness of the situation may be downplayed or the incident is mischaracterized (e.g. a sudden death is attributed to a heart attack, not a choking incident).(38) As a result serious problems may remain undetected for a longer period of time.

The formal Incident Reporting process is intended to serve several purposes in residential care:

• to ensure a timely response by the facility to the incident,
• to give Community Care Facilities Licensing staff the opportunity to review the facility’s response in a timely manner,
• to help prevent the recurrence of the incident and promote a high standard of care, safety, health and dignity of the persons in care,
• for data collection and analysis of health authority-wide. (39)

Reporting is mandatory

Care staff and the operator are required to report if they have reasonable grounds to believe the actions or behaviours they have observed meet the definitions of “reportable incident” in the legislation. Sometimes operators, care staff or volunteers are led to believe they have discretion in reporting.

This frequently comes up for abuse or neglect cases. Staff may or may not decide to report depending on relative severity of the situation or if they feel ethically uncomfortable with the situation. Abuse and neglect reporting must take place whether it is considered minor mistreatment or major. The follow-up response of the operator and Community Care Licensing to the incident will depend on the circumstances. People cannot opt out of reporting required by law, because they do not feel comfortable or the resident “didn’t want me to report”. The statements reflect a misunderstanding about discretion that does not exist in the law. As the Advocacy Centre for the Elderly has noted:

“… Mandatory reporting [in residential care] is just that – mandatory." (40)

The operator also must also maintain a written log of:

• Minor accidents and illnesses involving persons in care, that do not require medical attention and are not reportable incidents; and
• Unexpected events involving residents.(41)

Special note : Harm to the resident discovered outside the care facility

Social workers or other health care providers at hospitals may have a concern about a resident who is temporarily in hospital for treatment. British Columbia’s law is different than some jurisdictions, in that it does not place a responsibility on “everyone” to report suspected harms to a resident. However, if there is a suspicion that abuse or neglect is occurring, health care providers can still rely on the Part 3 of Adult Guardianship Act and report the concern to a “designated agency”. Almost every resident in a care facility who is experiencing suspected abuse or neglect would be considered a vulnerable adult falling within the scope of the Act. Part 3 of the Act (the abuse and neglect section of the Act) applies no matter where the person lives, except for a correctional facility.(42)

Restraints

A "restraint" is anything that limits the movement of a resident and over which the resident has no control. Restraints may be physical (e.g., lap belt, "posey" jacket, mittens, bed side rails, "geri- chairs”), environmental (barriers which confine a resident to a specific space such as locked units) or chemical (e.g., drugs used to inhibit or control disruptive behaviour). It is also a restraint when an assistive device such as wheelchair is left beyond a resident’s reach, or is modified so that the person cannot use it to move around (removing a wheelchair’s foot rests).

Today there is a wide variety of technology that “restrains” residents’ freedom and these are used for a wide variety of legitimate (and sometimes not so justifiable) reasons. Some residents may be prone to wandering and may need protection from exiting the facility unaccompanied. These residents may be provided with electronic “tags” that will deactivate elevators and alarm the main front exit.

However, depending on the circumstances, the use of physical or chemical restraints for the involuntary immobilization of the resident may not only be an infringement of the resident’s rights, but can also result in patient harm, including soft tissue injury, fractures, delirium, and even death. Harms to residents from restraints can arise for many reasons.

Staff may not recognize the practice actually is a form of restraint. Staff may not be adequately trained to identify and address the underlying cause of the problem (why the resident wanders or why the resident is showing this responsive behaviour).(43) As a result, the staff may rely on restraints as the “only tool in their care toolbox”. Also:

• staff may not recognize the risks associated with the restraint (e.g. recognize that the person will likely try to leave the bed, escape the restraint, or become more agitated) and
• Staff may be untrained in the proper use of restraints.

In many cases in residential care, restraints efforts intended to be a "last resort” become the “first resort”. The Alzheimer Society of Canada notes the special risks for people with Alzheimer’s disease or other dementias. For people with Alzheimer’s disease, the restraints are a restriction of freedom, can decrease a person’s physical activity level and ability to function independently, and can cause injuries.(44)

The law on restraints

Under the Residential Care Regulations, a "restraint" is defined as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care's freedom of movement in a community care facility, including accommodating the person in care in a secure unit."(45)

Division 5 of the Regulations describes situations in which restraints may be used and the minimum standards for their use. Section 74 (2) specifically stresses that the operator must ensure that a person in care is not restrained:

(a) for the purpose of punishment or discipline, or

(b) for the convenience of employees.

Circumstances in which restraints can be used

Restraints may be used in two circumstances:

(a) in an emergency, or (46)

(b) if there is a prior written agreement to the use of the restraint. (47)

The term “emergency” is not defined in the regulations. The term “emergency” in everyday language usually refers to events that are out of the ordinary that cause or are very likely to cause serious immediate harm to the person or others. Schedule D of the Regulations describes certain reportable incidents and defines an "emergency restraint" as “any use of a restraint that is not agreed to under section 74 “(a prior written agreement). If a resident is in care facility where issues are not recognized and appropriately addressed fairly early on, situations involving staff or other residents can easily deteriorate, turning into “emergencies”. This is not the intention of these sections of the regulation. The proper focus is on prevention and early intervention to avoid the emergency.

Restrictions

Section 73 (1) of the Residential Care Regulations identifies restrictions on the use of restraints, noting “A licensee must ensure that a restraint is not used unless:

(a) the restraint is necessary to protect the person in care or others from serious physical harm,

(b) the restraint is as minimal as possible, taking into consideration both the nature of the restraint and the duration for which it is used, and

(c) the safety and physical and emotional dignity of the person in care is monitored throughout the use of the restraint, and assessed after the use of the restraint.

All three conditions are required – protect from serious physical harm, minimal as possible, and monitor resident’s safety, as well as physical and emotional dignity.

Section 73 of the Residential Care Regulations sets out a number of preconditions, before the use of restraints can be in place and what needs to subsequently happen. It states:

(a) all alternatives to the use of the restraint must have been considered and either implemented or rejected;

(b) the employees administering the restraint must

(i) have received training in alternatives to the use of restraints and determining when alternatives are most appropriate, and the use and monitoring of restraints, and

(ii) follow any instructions in the care plan of the person in care respecting the use of restraints;

(c) the use of the restraint, its type and the duration for which it is used must be documented in the care plan of the person in care.

Written agreement to the use of restraints

The Residential Care Regulations identify that restraints may also be used if there is agreement to the use of a restraint by both:

(i) the person in care… (or in the case of a mentally incapable resident, their representative of the person in care or the relative who is closest to and actively involved in the life of the person in care), and

(ii) the medical practitioner or nurse practitioner responsible for the health of the person in care.

This agreement, however, must be in writing. All the regular rules on considering alternatives, staff training, following instructions and documentation still apply. The parties can agree when the need for the restraints will be reassessed in the care plan.

Post emergency restraint requirements

If restraints have been used in an emergency situation, after that emergency the Operator is required to talk with and provide “information and advice” to the resident who was restrained, anyone who witnessed the restraint’s use, as well as any employee involved in the restraint.(48) This “information and advice” is to be documented in the resident’s care plan.(49)

The regulations also set out a stringent process of reassessment of the need for the restraints. If restraints are used longer than 24 hours or continuously, the Operator must:

• have agreement in writing from the resident or their representative, if applicable and
• the medical practitioner or nurse practitioner responsible for the resident’s health care. (50)

References

1. BC’s best practice guideline for dementia define anti-psychotic medication this way: “Drugs developed to treat psychotic disorders such as schizophrenia, and bipolar disorder/psychotic depression. In older adult psychiatry they have roles in the management of psychotic disorders, mood disorders, delirium, and some behavioural and psychological symptoms of dementia (e.g. psychosis/marked aggression).” See: Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care - a person-centered interdisciplinary approach. (Ministry of Health, October 2012). Online: http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016). [“Best practice guideline for dementia“]
2. Health Canada. (2005). Atypical antipsychotic drugs and dementia – advisories, warnings and recalls for health professionals. Online: http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2005/14307a-eng.php (Last accessed May 10, 2016).Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
3. Ministry of Health, (December 2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities, p.7. Online: http://www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf (Last accessed May 10, 2016). [ “BC anti-psychotic drug review”]
4. BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
5. See: BC anti-psychotic drug review, pg. 8 and 9. Also Office of the Seniors Advocate. (2015) Monitoring Seniors' Services. p. 25. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/01/SA-MonitoringSeniorsServices-2015.pdf (Last accessed May 10, 2016). ["Monitoring Seniors' Services"]
6. BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed May 10, 2016)
7. Best practice guideline for dementia.
8. Office of the Seniors Advocate. BC Residential Care Quick Facts Directory. Online: https://www.seniorsadvocatebc.ca/wp-content/uploads/sites/4/2016/05/BC-Residential-Care-Quick-Facts-Directory-May-2016.pdf (Last accessed May 10, 2016).
9. See for example, Mayo Clinic. Antidepressants: Another weapon against chronic pain. Online: http://www.mayoclinic.org/pain-medications/art-20045647; UK National Health Services. Online: http://www.nhs.uk/Conditions/Antidepressant-drugs/Pages/What-it-is-used-for.aspx (Last accessed May 10, 2016). Also B.M. Kapura, P. K. Lalab, J. Shaw. (2014).Pharmacogenetics of chronic pain management. Clinical Biochemistry,47(13–14),1169–1187.
10. Trespass Act, [RSBC 1996] c. 462, s. 1 (a) and (b) apply to resident; and section s.1 applies to the operator. “occupier", in relation to premises, means
    1. (a) if the premises are land…or are property described in paragraph (a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,….and [occupier] includes a person who (d) has responsibility for and control over the condition of the premises or the activities there carried on, or (e) has control over persons allowed to enter the premises; "premises" means land, … and anything on the land including… (a) a building or other permanent structure,
       1. NOTE: An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the property.
11. Residential Care Regulations, B.C. Reg. 96/2009, s. 57 (1). (“RCR”)
12. RCR, s. 57 (2).
13. Even if visiting was characterized as an issue affecting the resident’s health in some way, the TSDM is required to consult with the resident, and act on accordance with the person’s beliefs, values, wishes, and if not known , to act in best interests.
14. Ministry of Health Policy Communiqué. 2012. Response to visitors who pose a risk to health or safety in health care facilities. Online: http://www.refworks.com/refshare/?site=035331133499600000/RWWS2A1318229/000431165256092000&rn=229 (Last accessed May 10, 2016). [“Ministry of Health Policy Communiqué.”]
15. Ministry of Health Policy Communiqué.
16. BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
17. RCR, s.60 (b).
18. AGA, s. 51 (e) (iii).
19. AGA, s. 51 (e) (iii).
20. RCR, s. 78.1(e)(i).
21. RCR s. 78.1 (e) (ii) “Records for each person in care”. The regulation refers to recording the “identification”, which would include identity * who”), but possibly might include other things to help staff identify the person, such as vehicle type and license number.
22. RCR, s. 58 (1).
23. RCR, s. 58 (2).
24. Schedule D of the Residential Care Regulation lists and defines 20 events, behaviours and actions that constitute a reportable incident. Section 77 of the RCR also states that a person in care is involved in a “reportable incident” when that person is the subject either of a reportable incident or, in the case of emotional, physical, financial or sexual abuse or neglect, of an alleged or suspected reportable incident. or current data on reported abuse or neglect incidents, see Office of Seniors Advocate, "Monitoring Seniors' Services", p. 15.
25. See Schedule D, Residential Care Regulation, (“aggressive or unusual behaviour”) “Other injuries” must also be reported — that is, any injury to a person in care that requires emergency attention by a doctor or nurse or transfer to a hospital.
26. RCR, s. 77.
27. See, for example, Office of the Privacy Commissioner of Canada. Guidelines for overt video surveillance in the private sector (prepared in collaboration with Alberta and British Columbia). Online: https://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.ASP [Last accessed May 10, 2016]. Also : Office of the Privacy Commissioner “Guidance Documents- Guidance on covert video surveillance in the private sector.” Online: http://www.priv.gc.ca/information/pub/gd_cvs_20090527_e.asp [Last accessed May 10, 2016]. For a general discussion see: C.J. Bennett & R,M. Bayley Video surveillance and privacy protection law in Canada. Online: http://www.colinbennett.ca/Recent%20publications/Video_surveilllance_and-privacy_protection_law_in_Canada.pdf (Last accessed May 10, 2016).
28. See, for example, E. Fleury & H. Campbell. Recent legal developments video surveillance in care homes. Online: http://cnpea.ca/en/blog/520‐recent‐legal‐developments‐video‐surveillance‐in‐carehomes?highlight=WyJudXJzaW5nIiwiaG9tZSIsImhvbWUncyIsIm51cnNpbmcgaG9tZSJd&hitcount=0 (Last accessed May 10, 2016).
29. Perlman, C.M and Hirdes, J.P. (Dec. 2008). The Aggressive Behaviour Scale: A new scale to measure aggression based on the Minimum Data Set. Journal of the American Geriatrics Society. 56 (12).
30. Office of Seniors Advocate, "Monitoring Seniors' Services", pg.24.
31. RCR, Schedule D, Reportable Incident.
32. Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
33. Canadian Institute for Health Information. Prevalence of aggressive behaviour by signs of depression and indicators of delirium, Nova Scotia nursing homes, 2003–2004 to 2006–2007.
34. See: WorkSafe BC. Communicate patient information. Prevent violent based injuries to health care and social services workers. Workplace BC notes that s. 22(3) (a) of FIPPA is often misunderstood and misapplied in this area.
35. (April 2002). Guidelines: Code White Response - a component of prevention and management of aggressive behaviour in health care. BC Workers Compensation Board/Health Coalition of BC/OHSAH.
36. Ministry of Health. (2012). Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care a person-centered interdisciplinary approach. Online : http://www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf (Last accessed May 10, 2016)
37. RCR, s.77 (1) to (3).
38. See Report of the Coroner into the death of Eldon Mooney. 2011-0278-0032. North Vancouver, July 16, 2011. Online : http://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/reports/investigative/mooney-eldon.pdf (Last accessed May 10, 2016).
39. Vancouver Island Health Authority. Community Care Licensing Program. Reportable and non-reportable incidents – information for caregivers. Online: http://www.viha.ca/NR/rdonlyres/B669541E-FB61-4416-AF73-AE4647534F0C/0/ReportableandNonreportableIncidents.pdf ( Last accessed May 10, 2016).
40. ACE.
41. RCR, s. 88.
42. AGA, s. 45 (1).
43. ACE.
44. Alzheimer Society (2007). Tough Issues: Restraints. Online: http://www.alzheimer.ca/~/media/Files/national/brochures-tough-issues/Tough_Issues_Restraints_2007_e.pdf (Last accessed May 10, 2016).
45. RCR, s. 1.
46. RCR, s. 74 (1).
47. RCR, s. 74 (1) (b).
48. RCR, s. 73 (3) (a).
49. RCR, s.73 (3)(d).
50. RCR, s. 75 (2) (a) (i) & (ii).

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

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

An act; a statute; a written law made by a government. See "regulations."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In law, (1) the physical railing separating the public gallery in a courtroom from the area where the judge and lawyers sit, (2) lawyers as a group, or (3) the place where lawyers go after work.

(1) In real property law, a piece of property and a building situated on it, usually including the area of the property surrounding a building on that property. (2) In law generally, a premise is an assumption that founds a logical argument. See "argument" and "real property."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of property, and stopping someone from harassing someone else. See "ex parte," "order" and "protection order."

A court order that someone not do or cease doing a thing; a restraining order. In family law, injunctions are often sought, for example, to stop someone from removing the children from a place, from disposing of assets, or from harassing someone. See "application" and "ex parte."

In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

A claim that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an "allegation of fact" or a "statement of fact."

In law, (1) a written argument, or (2) a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

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, defending a claim by denying the truth of a fact supporting the claim; a rejection of the truth of facts alleged.

Something which can be owned. See "chattels" and "real property."

In law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary," without owning that property and usually without acquiring an interest in that property other than as payment for their services. The trustee holds the property in trust for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting trust."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

(1) A lawyer, or (2) the advice given by a lawyer to their client.

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

Sending legal documents to a party at that party's "address for service," usually by mail, fax, or email, called "ordinary service" in proceedings before the Supreme Court. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

Real property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession."

Conduct that is permitted both by the law. See "unlawful."

In property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."

Short for the Child Support Guidelines, a regulation to the federal Divorce Act, adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.