Difference between revisions of "Directing Residential Care Concerns to External Bodies"
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The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates; the law specifically offers a protection from retaliation for people who give information to the Seniors Advocate. ([[Chapter Five Legal Issues in Residential Care References|143]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation. | The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates; the law specifically offers a protection from retaliation for people who give information to the Seniors Advocate. ([[Chapter Five Legal Issues in Residential Care References|143]])However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation. | ||
===A Final Note on Rights, Remedies and Problem Resolution=== | |||
On its face, residential care has a myriad of mechanisms available to address problems in this area. At the same time, there can be legislative gaps and systems may not function in ways that allow residents or families access to those problem resolution processes. Where there are apparently appropriate laws, public and private bodies always have a choice - to interpret and apply these narrowly and technically (which often leads to inaction), or more hopefully, to interpret them in ways that are supportive of good care for people living in British Columbia’s residential care facilities. | On its face, residential care has a myriad of mechanisms available to address problems in this area. At the same time, there can be legislative gaps and systems may not function in ways that allow residents or families access to those problem resolution processes. Where there are apparently appropriate laws, public and private bodies always have a choice - to interpret and apply these narrowly and technically (which often leads to inaction), or more hopefully, to interpret them in ways that are supportive of good care for people living in British Columbia’s residential care facilities. | ||
Revision as of 23:25, 10 July 2014
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This page from JP Boyd on Family Law and others highlighted in orange explain trial procedure and litigation in BC family law. They are under editorial review to provide more thorough, current, and practical guidance. Since 2020, procedures, forms, and laws have changed significantly. While gross inaccuracies have been corrected, some details may still be outdated. These pages were not included in the 2024 print edition. |
Directing Concerns to External Bodies[edit]
Police Services[edit]
A matter considered a crime in the community is also a crime in residential care. That includes if it is carried out by a staff member, administration, volunteer, family member, or another resident. If there is a suspected crime (such as assault or theft) in a residential care facility, the local police department should be contacted. Their role is to investigate to determine if there is evidence of a criminal offence. Their role is also in keeping the peace.
Police services can function as a sword and a shield in residential care facilities, in the sense they can be used for the benefit of the resident, or as a mechanism of control over residents and families. In some cases, health authorities have used adult guardianship law to obtain a Justice of the Peace Warrant to prevent family from removing a resident from the care facility. (97)Issues related to the use of police by operators to control access to the resident are described in the Chapter 4 “Legal Issues When Living in Residential Care”.
Police investigations: Police sometimes seek information from staff at the care facility about a resident or family member. Staff may erroneously believe they can simply share resident information with police inquiries.
Residents have a right to have their personal information kept private. As one health authority notes, the release of client personal information to police or designated/ delegated authority is not permitted unless:
- the client has provided informed consent,
- there is a lawful investigation,
- a court order, search warrant, notice to produce or other lawful instrument has been presented, or
- it is an urgent request (e.g. life and death). (98)
The term “lawful investigation” in this context means where there is an active investigation and file number. The police or other designated/delegated authority must also provide sufficient reasons why normal procedures are not reasonable in the circumstances (e.g. such as warrants, court orders). Operators must keep track of these police requests for information and how the request has been handled.
Information and Privacy Commissioner[edit]
Where the care issue deals with privacy of information or access to health information, the Office of the Information and Privacy Commissioner may be contacted for assistance. Common examples of privacy breaches include: where the care facility staff member has given personal information to a third party without consent, or the care facility has refused to allow the resident or their substitute decision-maker access to the resident’s records.
It should be noted that the Freedom of Information and Protection of Privacy Act (99) sets out the access and privacy rights of individuals, but only as they relate to the public sector. The Personal Information Protection Act (100) covers information privacy disputes and related matters between private citizens (e.g. where the resident is in a private pay bed) and is outside of the Commissioner's jurisdiction.
Human Rights Tribunal[edit]
British Columbia’s Human Rights Code prohibits discrimination on several grounds, including:
- age,
- physical or mental disability,
- marital status, family status,
- race, colour, ancestry, place of origin,
- sex, sexual orientation
- religion
If a resident in a care facility experiences discrimination or harassment based on a protected ground, the resident can apply to the Human Rights Tribunal. The provincial Code, in contrast to the Canadian Charter of Rights and Freedoms, covers both public and private actors. It also does not matter whether or not there was any intention to discriminate.(101)
The BC Human Rights Code places an important responsibility on all private and public bodies providing services to accommodate those who would otherwise be discriminated against. The duty to accommodate includes making suitable policy, practice and resource adaptations. For example, that might include modifying or adapting a private operator’s residential care practice or a Ministry of Health policy in order to alleviate or eliminate the harsher impact that the requirement had on a particular resident, or on a group of residents. This duty to accommodate is always in relation to the prohibited ground of discrimination. Human rights protections and the duty to accommodate are important.
The responsibility or “duty to accommodate” is significant; it exists up to the point where it would cause the operations “undue hardship”. Significantly more effort and potential cost will be required to get to the point of “undue hardship” for larger residential care operations or government bodies, than for small facilities with fewer resources. Undue hardship to the business must be based on actual evidence, not just a belief that it will be inconvenient or cost money to make changes in order to avoid the discrimination.
In practical terms, the most significant value of the human rights remedy is probably the educative and interpretive provisions of the Code. These can be a useful, persuasive tool in good residential care advocacy. Most cases of discrimination in residential care will relate to section 8 of the BC Human Rights Code (“Discrimination in accommodation, service and facility”), or section 43 (“Non-retaliation”). The most common protected grounds in residential care would likely relate to the residents’ physical and mental disability, age, race, marital or family status or sexual orientation.
It is possible, although challenging, to launch a “representative” case (“class action”) complaint with the Tribunal, where a number of similarly situated persons are experiencing the same discrimination. (102) The Tribunal has the capacity to hear adverse effect discrimination and systemic discrimination cases, both of which are important and relevant in residential care.
Within the Code there is the opportunity to argue that residents have experienced “adverse effect discrimination”. (103)This refers to a policy or practice that appears neutral (e.g., it applies to everyone), but imposes penalties, obligations or restrictive conditions that have a disproportionately negative effect on an individual or group because of some special characteristic of that individual or group that is protected by the Code. For example, this might occur if the services are only provided by English speaking care providers, but many of the residents in that facility speak Mandarin. These residents will likely be socially isolated, will not be able to understand any care instructions, and may be at greater risk of harm than other residents.
Adverse effect discrimination in services might occur where there is little if any effort to accommodate cultural and gender restrictions about receiving personal care. It may occur when the care facility foods are cooked off premise, or if the facility rules prohibited gifts of outside foods that met their cultural needs, and there was no accommodation for the cultural or religious preferences or dietary restrictions of a resident (e.g. kosher, halal, vegetarian). Culturally familiar foods, social and recreational activities are increasingly being recognized as important to strengthen cultural connectedness and maintain ethnic identity in residential care. (104) However, to amount to discrimination under the Code, it must be possible to draw a reasonable inference from the facts that there is a connection between the adverse discriminatory conduct and a prohibited ground of discrimination.
“Systemic discrimination” is discrimination that results from the simple operation of established procedures, none of which is necessarily designed to promote discrimination. For example, LGBT seniors point out that many aspects of care- from the way admission forms are worded to the day to day operations - effectively overlook even the possible existence of LGBT seniors in care, and treat them as “invisible”. The discrimination is then reinforced by the exclusion of the disadvantaged group (“obviously we don’t have any LGBT seniors in our resident population”). The exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces. To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.
One of the major challenges for residents whose human rights have been violated, is that these rights are treated as “personal rights”. The Human Rights Tribunal will not deal with the matter if the person dies after the matter has been referred to a Tribunal and before it has been heard by that Tribunal. (105) Unfortunately this means systemic forms of discrimination can continue by simply delaying and waiting for resident (human rights complainant) to die.
The Process[edit]
British Columbia’s human rights system has had a “direct access” process since 2003 where cases can be brought to the BC Human Rights Tribunal. (106)About three to five percent of all complaints received go before the Tribunal. (107)
Complaints are received by the Tribunal Registrar who screens the complaints according to whether they are within the Tribunal’s jurisdiction and whether there is an apparent human rights claim. In recent years, in efforts to become “more efficient”, the Tribunal has “screened out” substantially more cases at first instance, an interesting development given that the Tribunal is purported to be “direct access."(108)
The Tribunal has a settlement process to resolve received discrimination complaints at an early stage (within three to four months of application). The Tribunal itself is a highly legalistic and technically cumbersome process for most individuals, especially for those who are vulnerable. Complainants using the direct access process have a lower rate of success with the Tribunal than through the old Commission process. (109)Unrepresented complainants have a low chance at success in a hearing.(110)
Help with the Process[edit]
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. (111)
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, (112)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. (113)
| Special note : BC Human Rights Code |
| Discrimination in accommodation, service and facility.
8 (1) A person must not, without a bona fide and reasonable justification:
|
International Human Rights[edit]
There are a number of international human rights conventions that can also be relied to support human rights (non discrimination) based arguments for people living in residential care, such as equitable access to wheelchairs. These include for example, the UN Convention on the Rights of Persons with Disabilities which Canada signed in 2007 and ratified it in 2010. (114)It places a responsibility on Canada to address the many barriers faced by persons of any age with a disability. The provincial and territorial governments are responsible for implementing rights in the Convention within their jurisdictions. From a human rights perspective, for example, a wheelchair is more than an assistive device for many people with disabilities; it is the means by which they can exercise their human rights and achieve inclusion and equal participation. (115)
Ombudsperson Office[edit]
(116)The Ombudsperson is an independent officer of the Legislature appointed under the Ombudsperson Act. The focus of the Office is to ensure that every person in British Columbia is treated fairly in the provision of public services. The Ombudsperson has the responsibility to advise government on systemic causes of unfairness and to recommend changes to practices, policies and legislation that contribute to recurring unfairness.
Role, mandate, function[edit]
The general function of the Ombudsperson is to oversee the administrative actions of government authorities. The Ombudsperson determines whether provincial ministries and public agencies have acted fairly and reasonably, and whether their actions and decisions are consistent with relevant legislation, policies and procedures. The Ombudsperson can
- respond to inquiries from the public,
- conduct investigations of complaints of individual cases.
The Ombudsperson can also consult with authorities to improve administrative practices by identifying issues, providing reasons, and making recommendations. The Ombudsperson provides reports to the Legislative Assembly about administrative fairness issues, the causes of recurring unfairness and how these can be remedied.
According to the Ombudsperson Office, the focus of administrative fairness to assure procedural fairness and effective public administration. This involves having appropriate legal authority; useful policies and procedures; clear public information; accessible programs; consistent standards of practice; adequate monitoring and enforcement; and timely and responsive complaint resolutions. (117)
The Ombudsperson has authority over a wide range of government departments and Ministries; perhaps one of the most relevant ones here is the Ministry of Health. From 2008 to 2009 the Ombudsperson carried out an extensive review of care for seniors in British Columbia, identifying a wide variety of situations where seniors and families were not being treated in a fair manner in home support and residential care services. (118) In 2012 the Ombudsperson also reviewed the circumstances under which certificates of incapability were being issued in British Columbia to declare persons (typically seniors) incapable of managing their financial affairs. (119) The Ombudsperson’s review focused on whether the incapability certificate process was fair, and whether there were sufficient procedural safeguards to protect the person’s rights.
Issues[edit]
A wide variety of residential care issues potentially come under the scope of the Ombudsperson’s mandate of assuring administrative fairness. These may include, for example, examining whether or not
- a health authority or other public body makes a decision affecting a resident’s rights and provides adequate reasons, or has adequate procedural safeguards in place
- a public body acts within the actual scope of their authority, or uses a law intended for one purpose for a very different one,
- a policy seems to treat some people unfairly,
- a health authority provides operators with objective and enforceable standards of care,
- people are provided with sufficient information at the appropriate time to make informed decisions about admission, placement or transfer to a care facility,
- a public body has failed to act – e.g. a health authority “turns a blind eye” to care facility operators charging residents extra for services that are included in the accommodation fees paid.
Process[edit]
Complaints to Ombudsperson may be made by a person or group of persons.(120) A complaint must be in writing. (121)The Ombudsperson is a resource of last resort; that is, the person must have gone through the other avenues first.
Available remedies[edit]
The Ombudsperson can make recommendations which may or may not be acted upon by the public body. These recommendations are typically couched in language of “administrative fairness” and “natural justice” not whether the actions are legal. (122) The Ombudsperson’s work is guided by the democratic principles of openness, transparency and accountability.
The Public Guardian and Trustee (PGT)[edit]
The Public Guardian and Trustee (PGT) has numerous roles. In the context of residential care, the PGT’s responsibilities can include investigating
- the personal care and health care decisions made by a representative or guardian, (123)
- the affairs of a representative, guardian or person holding a power of attorney, if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the adult, may be at risk. (124)
- adult who is apparently abused or neglected, as defined in the Adult Guardianship Act. (125)
These investigations can also occur if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties. The PGT responsibilities includes the power to investigate and audit the affairs, dealings and accounts of certain trusts. The PGT can handle disputes about substitute decision making.
The Public Guardian and Trustee (PGT) has jurisdiction over health care decisions, when no one is available or qualified from the list of substitute decision makers. The PGT office can authorize another person such as a friend of the adult to make substitute decisions. If there is no person to authorize, the PGT can take the role as Temporary Substitute Decision-Maker.
The PGT also has jurisdiction when there is a dispute between potential substitute decision-makers of equal rank about who is to be chosen to make decisions on the person’s behalf and the issue cannot be resolved by the health care provider. In those circumstances, the health care provider is required to contact a Health Care Decisions Consultant at the Public Guardian and Trustee. (126)
The PGT also has the authority to act as Committee of the Estate when a person is declared mentally incapable under the Patient Property Act. (127) This area of law on the role of the PGT and “incapability certificates” is undergoing major change at present, and a new approach is expected to be in place by the end of 2014.(128)
Directing Concerns to Review Boards[edit]
Mental Health Review Board[edit]
As noted in Chapter 3 (Legal Issues in Admission & Transfer), older adults are sometimes admitted to a hospital where they become involuntarily detained under the Mental Health Act and then involuntarily transferred to a residential care facility on “extended leave. “ They can also be transferred from a care facility to a hospital and become involuntarily detained under the Mental Health Act. In both cases, they lose basic rights and can be treated without consent.
There is a formal process for medically certifying adults under the Mental Health Act. However, the adult does not have to be personally examined by a psychiatrist or even a physician in order to be involuntarily detained under the Mental Health Act. (129) The physician may operate on collateral information when “medically certifying “the person. This can sometimes lead to unnecessary loss of liberty. However, the Mental Health Review Board can review the continued involuntary detention of people “medically certified” under the Mental Health Act. (130)
Purpose[edit]
The Mental Health Review Board is an independent tribunal established to conduct review panel hearings under the Mental Health Act. The review panel makes a decision on only one issue - whether the person continues to meet the criteria to remain as an involuntary patient under the Mental Health Act. (131) It does not make decisions about treatment. However, if the person is no longer involuntarily detained, the treatment issues usually become moot.
The Board's mandate is based on involuntary patients' periodic rights to fair and timely reviews of their loss of liberty. Its function is to ensure that people admitted by physicians and detained involuntarily in the designated facilities have access to an objective review process.
The system is subject to the constitutional rights of section 7 of the Canadian Charter of Rights and Freedoms, (132) which states that "[e]veryone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Composition[edit]
The Mental Health Review Board is comprised of a chair and members appointed by the Minister of Health to conduct “review panel” hearings. A review panel must consist of a medical practitioner, a member in good standing of the Law Society of British Columbia or a person with equivalent training, and a third member who is neither a medical practitioner nor a lawyer.
Currently, the Board has 83 legal, medical and community members living in various locations throughout the province. A review panel is comprised of three or more members of the Board. After a hearing, the review panel decides whether a patient should be discharged from involuntary status. In the Lower Mainland, Community Legal Assistance Services delivers the Mental Health Law Program, which may be able to provide representation at a review panel hearing. Its resources are very limited.
Process[edit]
A person is eligible to apply for a review within strict statutory time limits following the issuance of the second medical certificate. Board members must conduct hearings within either 14 or 28 days from the day the application is received unless the person waives this right.
Mental Health Review Board controls its own processes and makes rules respecting practice and procedure. It has considerable latitude in terms of who can attend, who can stay in the hearing, whether the patient can have a support person present throughout the hearing, and the allowable evidence.
If the Mental Health Review Board confirms the continuing need for the person’s involuntary detention, this can be reviewed, but subject to the time frames in the Mental Health Act.
Remedies[edit]
Basically the Mental Health Review Board’s authority is limited to whether or not the person should continue to be an involuntary patient .The Review Board (review panel) does not make decisions about treatment. The review panel also does not inquire into whether a person's initial certification was justified.
| Special Note on Treatment |
| The Mental Health Review Board and review panels do not deal with treatment issues. The Mental Health Act permits a request for a second medical opinion on appropriateness of the treatment, within one month, three month and six month time frames under the Act. (133)
Also if a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, the complaints may be brought to the attention of several different parties. This includes the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson. (134) |
Professional Colleges & the Health Professions Review Board[edit]
If the concern in a care facility relates to the actions of a specific person who is a member of a professional college (e.g., doctor, nurse or social worker), a complaint can be brought to their professional College for investigation.
One of the major issues with relying on these regulatory bodies for residential care concerns is how long the complaint and investigation process takes. The College of Physicians and Surgeons notes for example, that the College tries to resolve complaints within six to eight months, but matters can take much longer. Decisions of the various professional colleges can be reviewed by the Health Professions Review Board. However, these reviews will be limited to the adequacy of the investigation and reasonableness of the decision (“disposition”) by the college. Even if a matter is found in favour of the person who made the complaint, the review board can only redirect the matter back to the professional college.
Legal advocates working in institutional environments also note that regulatory colleges and review boards may not promote compliance or enforce the existing law (such as health care consent law) with their members, especially if the person’s actions are simply considered a “standard practice“. (135)
For example in one British Columbia case the Health Professions Review Board appeared to implicitly condone a physician’s use of a consent to treatment given at admission when he prescribed a psychoactive medication to a cognitively impaired resident without consulting the family (a common occurrence in residential care). The Review Board accepted that the physician felt he had implied consent for “what was termed ‘minor‘ forms of treatment such as painkillers and anti-diarrheal medications”. (136) As noted throughout this manual, legally operators cannot request blanket consent to treatment at admission or any other time. The substitute decisionmaker cannot legally give it either because it violates the underlying premise of giving “informed consent” based on the condition and information at hand The Health Review Board referred to the physician’s actions simply as a “failure to communicate”, not as a breach of the resident’s legal rights around consent.
Community Care and Assisted Living Appeal Board[edit]
Licensed residential care facilities can seek an exemption from certain sections of the Community Care and Assisted Living Act. Among other things this administrative tribunal (Board) is responsible for appeals dealing with the certification for care facilities and exemptions from the Act of certain standards or requirements. An operator is expected to show how the current regulations or standards cannot be met and how exemption will not increase the risk to the residents’ health and safety. (137)
People other than the operator or licensee can appeal these exemptions. (138) The appeal can be brought within 30 days by a resident or the resident’s agent or personal representative of a person in care, or resident’s spouse, relative or friend. (139) It has been used by residents’ families to appeal an operator’s efforts to close the facility without adequate notice. The Appeal Board is authorized by Community Care and Assisted Living Act.
Addressing Systemic Concerns: BC Seniors Advocate[edit]
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. (140)
The Seniors Advocate will be responsible for:
- (a) monitoring the provision of seniors' services,
- (b) analyzing issues believed to be important to the welfare of seniors generally, and
- (c) advocating in the interests of seniors. (141)
The Advocate has authority to:
- (a) identify and analyze systemic challenges faced by seniors;
- (b) collaborate with persons who deliver seniors' services for the purpose of improving the efficiency and effectiveness of service delivery;
- (c) promote awareness, by seniors, their caregivers and their families, of systemic challenges faced by seniors, and of the resources available to seniors;
- (d) make recommendations to government and to persons who deliver seniors' services respecting changes to improve the welfare of seniors. (142)
Because it is a new office, the specifics of the role of the Advocate will gradually unfold. At this point, 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 Senior’s Advocate may request information from public and private sector service providers, other than personal information.
The Seniors Advocate Act provides a notable safeguard for residents in care facilities, their families and advocates; the law specifically offers a protection from retaliation for people who give information to the Seniors Advocate. (143)However the Seniors Advocate Act does not identify penalties or repercussions if a person or organization contravened the protections from retaliation.
A Final Note on Rights, Remedies and Problem Resolution[edit]
On its face, residential care has a myriad of mechanisms available to address problems in this area. At the same time, there can be legislative gaps and systems may not function in ways that allow residents or families access to those problem resolution processes. Where there are apparently appropriate laws, public and private bodies always have a choice - to interpret and apply these narrowly and technically (which often leads to inaction), or more hopefully, to interpret them in ways that are supportive of good care for people living in British Columbia’s residential care facilities.
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014. |