Chapter Three Legal Issues in Residential Care References

References

1. There are no specific admission criteria for private hospitals or the private pay beds in residential care facilities, other than the ability to pay. However, most of the people using the resource will have similar care needs to those in a subsidized residential care facility or extended care facility. As the Ombudsperson report The Best of Care (2012) notes all three types of facilities now provide complex care. [page 210]. This report will be referred to as the “Ombuds, Best of Care” throughout this manual.
2. This is determined by the health care tool, the Resident Assessment Instrument (RAI).
3. See for example, Interior Health, which states that the person must also “Have tried all of the avenues available for receiving care at home.” Online: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/Eligibility.aspx (Last accessed May 1, 2014).
4. British Columbia. Health Services. Health and Safety. Long-Term Residential Care. Online: http://www2.gov.bc.ca/gov/topic.page?id=4FEC0F570BC04692810548267D09577E (Last accessed May 1, 2014).
5. Ministry of Health Home and Community Care Policy Manual, Chapter 1, Overview.
6. Alternate Level of Care refers to the transition period between acute (hospital) and post-acute ( non hospital) settings. People in this transition period are referred to as alternate level of care (ALC) patients. Even though they no longer require the intensity or specialized medical care provided by acute hospitals, they are not able to be discharged to the community ( to a residential care facility or “back home”) because the available resources are unable to meet their needs. They may be delayed from being discharged to a post-acute Provider, typically because of lack of appropriate, available space. See: Canadian Institutes for Health Information. November 2012. Seniors and alternate level of care: building on our knowledge. Online: https://secure.cihi.ca/free_products/ALC_AIB_EN.pdf (Last accessed May 1, 2014).
7. Adapted from Best of Care. [pg.34].
8. Ombuds, Best of Care. [pg. 225].
9. Ombuds, Best of Care. [pg. 34]. Also for a good discussion of surrounding the law and ethics of discharge from hospitals to nursing homes and other settings in the Ontario context, see J. E. Meadus & J. A. Wahl. Transfer from hospital to long-term care: reframing the ethical debate from the patient’s perspective. (Toronto: Advocacy Centre for the Elderly, 2008), 4 Online: http://www.acelaw.ca/appimages/file/ACE%20-%20Ethical%20Issues%20&%20First%20Available%20Bed%20Policies%20-%202008.pdf (Last accessed May 1, 2014).
10. Ombuds, Best of Care. [pg. 34].
11. Ombuds, Best of Care. [pg. 33].
12. See for example, Vancouver Island Health Authority Residential Care Guide, pg. 6[ “VIHA”].
13. Home and Community Care. Online: http://www2.gov.bc.ca/gov/theme.page?id=A8F32056E4192102A51A3F0FF373223C
14. Resident Bill of Rights. Online: http://www2.gov.bc.ca/assets/gov/topic/D3E0B9FAB55484D135A5C5201D799D96/pdf/adultcare_bill_of_rights.pdf (Last accessed May 1, 2014).
15. Residential Care Regulations. B.C. Reg. 96/2009, as amended. Online. http://www.bclaws.ca/Recon/document/ID/freeside/96_2009#section48
16. The Ministry of Health is currently reviewing “Chargeable extras”.
17. HCC Policy Manual. Chapter: 7 Client Rates Number: 7.B.1 Section: B Income-Based Client Rates. Subsection: 1 Assessment of Client Rates. (Effective: January 1, 2013) (“HCC, c. 7”)
18. HCC, c. 7.
19. HCC, c. 7.
20. Farrell, J. (July 15, 2013). Why wheelchair fees are not fair and what they say about the state of seniors care in BC. Centre for Policy Alternatives. Online: https://www.policyalternatives.ca/publications/commentary/why-wheelchair-fees-are-not-fair-and-what-they-say-about-state-seniors-care#sthash.y4TGTDck.dpuf (Last accessed May 1, 2014).
21. Ministry of Health. Who pays. Publicly subsidized or private pay services. Online : http://www2.gov.bc.ca/gov/topic.page?id=D2A2D928853B489DBC280E9F451187F1&title=Publicly%20Subsidized (Last accessed May 1, 2014).%20or%20Private%20Pay%20Services [“Who pays”] (Last accessed May 1, 2014). Fraser Health for example notes under “How do I access private pay facilities? that “an assessment by Fraser Health staff is not needed for admission to a private pay residence.” Online: http://www.fraserhealth.ca/your_care/residential_care/options_for_residential_care/ ( Last accessed May 1, 2014).
22. Ibid. Who pays.
23. Ombuds, Best of Care. [page, 243].
24. Ombuds, Best of Care. [page, 243].
25. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013.
26. Ombuds, Best of Care. [page 234]
27. For general information on private trustees for Old Age Security or Canada Pension Plan, see: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3506cpp&ln=eng (Last accessed May 1, 2014).
28. Human Rights Code [RSBC 1996] c. 210.
29. HCC Policy Manual. Chapter: 1 Overview Number: 1.A Section: At Home And Community Care Services Page: 2 Of 4 Subsection: Effective: January 1, 2013.
30. For a legal discussion of problems with “personal care decisions” that come up in residential care facilities in Ontario, see : R. Chrolavicius. ( November 26, 2013) Misuse of powers of attorney for personal care. Advocacy Centre for the Elderly. Online: http://www.advocacycentreelderly.org/appimages/file/Misuse%20of%20Powers%20of%20Attorney%20for%20Personal%20Care-LR%203.pdf (Last accessed May 1, 2014).
31. The Mental Health Act, again is often used to admit individuals who do not have anyone to consent on their behalf.
32. See:
    1. Representation Agreement Act , [RSBC 1996] c. 405, s. 1 Definitions “Personal care”.
    2. Power of Attorney Act [RSBC 1996]c. 370. Part 2 Enduring Power of Attorney, s. 10 (Definitions, “personal care “).
    3. Also see Nidus. “ Personal Care”. Online : http://www.nidus.ca/?page_id=275 (Last accessed May 1, 2014).
33. See Representation Agreement Act.
34. s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes
    1. (a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,
    2. (b) a plan for minor health care that
       1. (i) is developed by one or more health care Providers,
       2. (ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and
       3. (iii) expires no later than 12 months from the date consent for the plan was given, and
    3. (c) participation in a medical research program approved by an ethics committee designated by regulation.
35. Advocacy Centre for Elderly. Long-Term Care Facilities in Ontario: The Advocate's Manual. Chapter 3. Entering a long-term care facility [“ACE LTC Manual”]
36. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013. [“HCC, c. 6”]
37. ACE LTC Manual. Chapter 3. Entering a long-term care facility 3.29.
38. Representation Agreement Act, s. 3.1; Health Care Consent and Care Facility Admission Act [RSBC 1996] c. 181 s. 19.91
39. Romano, L & Meadus. J. (August 5, 2009). Congregate living and the law as it affects older adults . Research Paper for the Law Commission of Ontario: Advocacy Centre for the Elderly. [Page 23]. Online: http://www.advocacycentreelderly.org/appimages/file/ACE-LCO-Congregate_Living_and_the_Law_as_it_Affects_%20Older_Adults.pdf (Last accessed May 1, 2014).
40. This is language being used by some Operators. This is not the same as nominating a committee.
41. Ombuds, Best of Care. [pg. 242].
42. Business Practices and Consumer Protection Act [SBC 2004] c. 2. Online: http://www.bclaws.ca/Recon/document/ID/freeside/04002_00
43. BC Government. (2013). Planning for Your Care Needs. Online : http://www.health.gov.bc.ca/library/publications/year/2013/planning-for-your-care-needs.pdf [“Planning Needs”] (Last accessed May 1, 2014).
44. Ibid. Planning Needs.
45. RCR, s. 47 (2)
46. Mental Health Act [RSBC 1996] c. 288.
47. See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).
48. Ombuds, Best of Care, Finding 101.
49. See for example, BC. Civil Liberties Association. “Suggested changes to BC’s Mental Health System regarding involuntary admission and treatment in non-criminal cases” Adopted by the BCCLA, 2011,
50. British Columbia Ministry of Health and Ministry Responsible for Seniors. (April 1999). Model Standards for Continuing Care and Extended Care Services. Online: http://www.health.gov.bc.ca/library/publications/year/1999/modelstandardsofcare.pdf ( “Model Standards”) (Last accessed May 1, 2014).
51. Model Standards . Residential Services. Pre-Admission. Standard 1.
52. Home and Community Care Policy Manual. Chapter: 6 Residential Care Services Number: 6.A. Section: A General Description and Definitions . Subsection: Effective: January 1, 2013
53. Ombuds, Best of Care, p. 227.
54. Adapted from ACE, LTC Manual, Chapter 2 (2.17).
55. Other matters that can affect the degree a facility is appropriate are the care and specific services; the facility's organizational structure; types and qualifications of staff; access to community resources (e.g. advocacy groups, counsellors and volunteer services); physical environment and resident's personal space and furnishings; programs, services, supports; and, pertinent policies related to care planning, food services, medications, smoking, alcohol use, visiting, restraints, pets, per diem cost, personal charges (e.g. dental), and personal belongings.
56. There are legal responsibilities to accommodate to the needs of residents.
57. See: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
58. See for example, Sussman, T. Churchill, M., Brotman, S. Chamberland, L..et al. (2012) “Identifying barriers, developing solutions: addressing the health and social needs of gay, lesbian, bisexual and transgender older adults who reside in long term care. “ Montreal, Quebec. Or Qmunity Generations. Aging Out Project Policy Dialogue. (November 19, 2013. Burnaby. BC),
59. See for example, the Vancouver Island Health Authority Residential Care Guide at page 6 states “If the first bed offered is not accepted, the client is no longer considered eligible or accepted for residential care. Clients in hospital who do not accept the first appropriate bed will be discharged.”
60. See VIHA, ibid. pg. 6.
61. Chapter: 6 Residential Care Services Number: 6.D Section: D Access To Services.
62. See: Interior Health.”Accessing Residential Care. “ Online : http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx
63. See:
    1. Interior Health: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/AccessingRC.aspx
    2. Fraser Health : http://www.fraserhealth.ca/media/Residential_Care_in_FraserHealthweb.pdf (Last accessed May 1, 2014).
64. Ombuds, Best of Care. Finding 80 and Recommendation 104.
65. BC Care Provider Association. Residential Care Health and Safety Guidelines. A Guidebook. Online : http://www.bccare.ca/wp-content/uploads/bccare_safety_grid_v11.pdf
66. Director of Licensing. Standard of Practice. “Advance Directives and Care Plans”. Number: 01/08/2006 Effective Date: September 2006. Online : http://www.vch.ca/media/2008_08_09FamilyChildCare_regulation.pdf (Last accessed May 1, 2014). [“Advance Directives”]
67. Model Standard, 3. Standard: 3. Residents' individual health needs and psychosocial status are assessed by the interdisciplinary team.
68. RCR, s. 81. Note the Vancouver Coastal Health Director of Licensing. “Advance Directives” document states six weeks.
69. Ibid.
70. For more information on Veterans and Residential Care matters such as client rates, see: HCC Policy Manual. (Effective: April 1, 2013). Chapter: 7 Client Rates Section 7.B.4 (Income-Based Client Rates); also Subsection: 4 Alternate Payers. Also, Chapter: 6 Residential Care Services Number: 6.D Access To Services.
71. Ibid.
72. See HCC Policy 6.C. Residential Care Services, Service Needs Determination.
73. HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.D.1 Section: D Access To Services Page: 3 of 3 Subsection: 1 Supporting spouses with differing care needs
74. HCC Policy Manual. Ibid.

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

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."

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."

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."

The geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."

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."

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.