Chapter Five Legal Issues in Residential Care References

References

1. Meadus, J. Complaints in Long Term Care Home. Advocacy Centre for the Elderly, Toronto, ON/ Online: http://www.acelaw.ca/appimages/file/Complaints%20in%20LTC%20-%202013.pdf [Last accessed May 1, 2014]
2. Best of Care Getting It Right For Seniors In British Columbia (Part 2), Public Report 47, p. 310, Regulations (Best of Care, Part 2).
3. See for example:
   1. Webb, G. (2013). The prevention of abuse and neglect in Ontario long-term care homes. Advocacy Centre for the Elderly. p. 4 Online http://www.acelaw.ca/appimages/file/Prevention%20of%20Abuse%20&%20Neglect%20in%20LTC-2013.pdf (Last accessed May 1, 2014)
   2. Estabrooks, C.A., Poss, J. W., Squires , J.E., Teare, G. F., Morgan, D.G., Stewart, N., Doupe , M.B., Cummings, G.G. & Norton, P.G. (2013). A profile of residents in prairie nursing homes Canadian Journal on Aging / La Revue canadienne du vieillissement 32 (3), 223 – 231.
   3. Berta, W., Laporte, A., Zarnett, D., Valdmanis, V., & Anderson, G. (2006). A pan-Canadian perspective on institutional long term care. Health Policy, 79 (2–3), 175 – 194.
   4. Canadian Union of Public Employees .Residential long-term care in Canada our vision for better seniors’ care. Online : http://cupe.ca/updir/CUPE-long-term-care-seniors-care-vision.pdf (Last accessed May 1, 2014)
   5. Spencer, C., Charpentier, M., McDonald, L., Beaulieu, M., Harbison, J., Hirst, S. and Podnieks, E. (2008). National Snapshot: “Where things currently stand” – Executive Summary. Prepared for the national project A Way Forward: Promising Approaches to Abuse Prevention in Institutional Settings. University of Toronto, Institute for Life Course and Aging.
4. See, Kozak & Luckawieki, pg. 28. Also:
   1. Hansberry, M.R., Chen, E. & Gorbien, M. J. (2005). Dementia and elder abuse. Clinics in Geriatric Medicine. 21 (2), p. 315-332.
   2. Centers for Excellence on Elder Abuse and Neglect, University of California, Irvine. How at risk for abuse are people with dementia? Online: http://www.centeronelderabuse.org/docs/PwDementia_Factsheet.pdf (Last accessed May 1, 2014)
5. Drance, E. Residents Injuring Other Residents: What is Happening? What is Bring Done? 2013 Friesen Conference. Online : http://www.sfu.ca/uploads/page/05/Friesen2013_Drance.pdf (Last accessed May 1, 2014)
6. RCR Regulations, s. 60.
7. CCALA. s. 22 (3) and Regulations,
8. Human Rights Code [RSBC 1996] c. 210, s.43.
9. RCR Regulations, s. 48 (b)
10. RCR Regulations, s. 89.
11. BC Ombudsperson (February 2012). Best of Care Getting It Right For Seniors In British Columbia (Part 2), Public Report 47., F. 117 (“Ombuds, Best of Care”).
12. Ombuds, Best of Care, Recommendation 148.
13. It can make it harder for the operator to prioritize the concerns in the facility. Some operators may simply leave matters to the last and yet legally be “in time”; other may respond “in time” but in an unsatisfactory manner
14. For more information on control of visiting, see Chapter 4 on Legal Issues When Living in Residential Care.
15. RCR Regulations, s. 60 (b)
16. RCR Regulations, S. 60 (c)
17. CCALA, s. 22
18. CCALA , s. 22 (3) - must not alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service
19. The AGA was raised in the residential care case of Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 to prevent family from removing Margot Bentley from the facility when the family disagreed with the staff about spoon feeding her, apparently against her pre-expressed wishes. [“Bentley v. Maplewood”]
20. AGA, s. 46 (4) These include, for example protections from being threatened with dismissal, refusing to employ or to continue to employ a person, or discriminating against a person with respect to employment or a term or condition of employment or membership in a profession or trade union.
21. RCR, s. 60 (b)
22. CCALA, s. 22 (3)- must not alter, interrupt, or discontinue service
23. AGA, s. 46 (1)
24. AGA, s. 46 (4) (b)
25. AGA, s. 46 (4)
26. AGA, s. 46 (4) (d)
27. CCALA, s. 22 (1)
28. CCALA, s. 22 (2)
29. AGA, s. 46 (1)
30. AGA, s. 46 ( a), (c) and (d).
31. AGA, s. 46 (4) (d)
32. CCALA, s. 22 (1)
33. AGA, s. 46 (1)
34. AGA, s. 46 (4)
35. AGA, s. 46 (4) (d)
36. Leisureworld (Ontario). The use of defamation is considered a SLAPP lawsuit (Strategic Lawsuits Against Public Participation,) basically brought to prevent complaints being raised.
37. Canadian Bar Association, BC Branch. Defamation: Libel and Slander , Script 24. Online: http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240 (Last accessed May 1, 2014)
38. Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640
39. Office of the Ombudsperson Best of Care Part 1 , pg 28-29.
40. Report on Assisted Living in BC. BCLI Report no. 72, CCEL Report no. 7 September 2013, pg. [“Assisted Living}
41. Assisted Living
42. See Bentley v. Maplewood.
43. CCALA, s. 7 (1) (c) and (c.1) (i) and (ii).
44. Specifically the Health Care (Consent) and Care Facility Admission Act, the Patients Property Act, and the Representation Agreement Act.
45. Ministry of Health. Community Care Facilities . “Residents Bill of Rights”. Online: http://www.health.gov.bc.ca/ccf/residents_bill_of_rights.html [“Bill of Rights”] (Last accessed May 1, 2014)
46. Bill of Rights.
47. RCR, s. 4 (a).
48. Bill of Rights , s. 4 (b). Note : A summary of the care facility’s inspection record is also available online.
49. Residents’ Bill of Rights, s. 4 (c ) and (d).
50. Residents’ Bill of Rights, s. 4 (e).
51. Guidelines, p.2
52. Ministry of Health. Home and Community Care. Accountability: Family and Resident Councils. Online http://www2.gov.bc.ca/gov/topic.page?id=96139325762343BB9F289A0C0F73D868 (Last accessed May 1, 2014)
53. Ostensibly the reason for not including people whose family are no longer residents at the facility is a fear of “political advocacy”.
54. For example Ontario’s Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s. 59-60 identifies the responsibility of the licensee to promote the establishment of the Family Council and respond to Council concerns in a specific timeframe. It sets out specific powers of the Council including rights to see the Licensee’s funding agreement information.
55. RCR, s. 38.
56. RCR, s. 40 (1).
57. Criminal Records Review Act [RSBC 1996] c. 86
58. Patient Care Quality Review Board Act, Bill, 41, 2008, s. 1
59. (2013) Patient Care Quality Office Resource Guide. Ministry of Health, p. 5. Online : http://www.phsa.ca/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed May 1, 2014).
60. See: Provincial Health Services Authority. Patient Care Quality Office. Online : http://www.phsa.ca/NR/rdonlyres/CF2CFA45-A2FC-45C6-920C-F775C740CA03/64611/PCQOResourceGuideMoHS_PHSA2012.pdf (Last accessed May 1, 2014). Also Note : Murtaugh, J. (2012). Patient Care Quality Program Final Evaluation Report. Prepared for BC Ministry of Health. Online: http://www.health.gov.bc.ca/library/publications/year/2012/patient-care-quality-program-evaluation-report.pdf [“Murtaugh”] Notes that staff find the PCQ timelines challenging and unreasonable.
61. Murtaugh.
62. See Murtaugh, pg. 17, Figure 1.
63. Murtaugh, pg. 24.
64. Murtaugh.
65. Murtaugh, p. 21.
66. Murtaugh, p. 41
67. "care quality complaint" means a complaint
    1. (a) respecting one or more of the following:
       1. (i) the delivery of, or the failure to deliver, health care;
       2. (ii) the quality of health care delivered;
       3. (iii) the delivery of, or the failure to deliver, a service relating to health care;
       4. (iv) the quality of any service relating to health care, and
    2. (b) made by or on behalf of the individual to whom the health care or service was delivered or not delivered. "Health care" means anything that is provided to an individual for a therapeutic, preventive, palliative, diagnostic or other health related purpose, and includes (a) a course of health care, and (b) other prescribed services relating to individuals' health or well-being.
68. HCCCFAA, s.1
69. HCCCFAA, s.1
70. Patient Quality Care Review Board Act. Bill 41 (2008). Patient Care Quality Review Board, “Legislation” . Online: http://www.patientcarequalityreviewboard.ca/legislation.html (Last accessed May 1, 2014)
71. Patient Care Quality Review Board. “About us”. Online: http://www.patientcarequalityreviewboard.ca/aboutus.html (Last accessed May 1, 2014)
72. For an example of appeal board issues potentially affecting the care of residents, See: SB, CB, SG & JN v. Vancouver Island Health Authority & Cowichan Lodge. 2008 BCCCALAB 6. (Application for Stay order pending appeal - Granted)
73. Patient Care Quality Review Board. 2013 Annual Report. Online: http://www.health.gov.bc.ca/library/publications/year/2013/PCQRB-annualreport-1213.pdf (Last accessed May 1, 2014)
74. Patient Care Quality Review Board. “Frequently asked questions”. Online : http://www.patientcarequalityreviewboard.ca/faqs.html#Q20 (Last accessed May 1, 2014)
75. Patient Quality Care Review Board Annual Report, 2011-12, pg.33. Online : http://www.health.gov.bc.ca/library/publications/year/2012/PCQRB-annualreport-1112.pdf (Last accessed May 1, 2014)
76. CCALA, s. 15.
77. See Sivertson (Guardian ad litem of) v. Dutrisac [2011] B.C.J. No. 810, 2011 BCSC 558.
78. Best of Care, Part 2, pg. 314.
79. Ombuds, Best of Care, Recommendation 160: The Fraser, Interior, Northern and Vancouver Island health authorities inspect all residential care facilities governed under the Hospital Act in the same manner and with the same frequency as they inspect residential facilities licensed under the Community Care and Assisted Living Act commencing immediately.
80. Office of the BC Ombudsperson. June 2013. Update on Status of Recommendations- The Best Of Care: Getting It Right For Seniors In British Columbia (Part 2) Public Report No. 47 Pg. 8.
    1. March 2013 - FH confirmed that it conducts and will continue to conduct annual inspections of residential care facilities governed under the Hospital Act in the same manner as CCALA facilities are inspected.
    2. October 2012- FHA has begun annual Hospital Act facility inspections. -January 2012
    3. FHA will collaborate with the Ministry of Health and other health authorities to develop and implement a standardized and consistent approach to the inspection of residential facilities governed under the Hospital Act.
81. Ombuds, Best of Care Part 2, pg. 311
82. Fraser Health. Inspection Category Definitions. Revised September 7, 2012.
83. Ministry of Health. (February 2012). A guide to community care facility licensing in British Columbia, pg. 40. Online : http://www.health.gov.bc.ca/ccf/publications/a-guide-to-community-care-facility-licensing.pdf (Last accessed May 1, 2014) [ “Community care licensing guide”]
84. Ombuds, Best of Care, p. 348.
85. http://www.ccalab.gov.bc.ca/dec/2004_BCCCALAB_1.pdf (Last accessed May 1, 2014)
86. Community care licensing guide, pg. 4.
87. RCR, Schedule D, Bill of Rights, s 4 (d).
88. Vancouver Coastal Health. Clinical Ethics Services. Online : http://alliedhealth.vch.ca/docs/Ethics_Brochure.pdf (Last accessed May 1, 2014)
89. Interior Health. « Dispute of a Health care Decision made by a Temporary Substitute Decisionmaker » AL0100 Consent – Adults . Administrative Policy Manual. Date [Approved 2005, last reviewed June 2012].
90. Rudnick, A., Pallaveshi, L. , Sibbald, R.W. , & Forchuk, C. (March 2014 ) Informal ethics consultations in academic health care settings: A quantitative description and a qualitative analysis with a focus on patient participation. Clinical Ethics , 9(1), 28-35.
91. RCR, s. 38.
92. RCR, s. 40 (1).
93. Care Aide and Community Health Worker Registry. “About the Registry”. Online: http://www.cachwr.bc.ca/About-the-Registry.aspx (Last accessed May 1, 2014)
94. The Registry’s enabling framework is the Letter of Understanding (LOU) that was signed by HEABC, the Facilities Bargaining Association (FBA) and the Community Bargaining Association (CBA) in 2010. Appendix A of the LOU outlines the Registry’s investigative and removal process. The Registry reports to the Executive Director at Health Match BC, the HEABC President /CEO, and the MOH.
95. “Employers- Frequently Asked Questions” Online: http://www.cachwr.bc.ca/About-the-Registry/Employer-FAQ.aspx (Last accessed May 1, 2014)
96. Foerster, V.& Murtagh, J. (February , 2013) British Columbia Care Aide & Community Health Worker Registry: A Review, Ministry of Health, pg. iv. Online: http://www.health.gov.bc.ca/library/publications/year/2013/bc-care-aide-registry-report.pdf (Last accessed May 1, 2014)
97. See Bentley v. Maplewood.
98. Interior Health. Policy AL1500. Police -designated/delegated authority access to clients and client information.
99. Freedom of Information and Protection of Privacy Act [RSBC 1996] c.165.
100. Personal Information Protection Act [SBC 2003] c. 63.
101. BC Human Rights Code, [RSBC 1996] c. 210, s.2.
102. See for example, Cole and Joseph obo others v. Northern Health Authority and others, 2014 BCHRT 26, where a group in the Prince Rupert area argued that the hospital services available to First Nations people were significantly lower or deficient compared to those in other communities.
103. Ontario Human Rights Commission v. Simpsons-Sears Ltd.1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.
104. Kolb. P.J. (ed.) (2007).Social work practice with ethnically and racially diverse nursing homes. Columbia University Press. p. 185.
105. British Columbia v. Gregoire, 2005 BCCA 585. The Court of Appeal held that the Tribunal did not have jurisdiction to proceed further upon the death of the complainant. However, for a bit more promising approach (outside of human rights code) to actions surviving the death of the complainant, See Dudley v. Canada (Attorney General) [2013] B.C.J. No. 1191.
106. McNaughton. , H. “Lessons learned: the BC direct access Human Rights Tribunal” Online: http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf (Last accessed May 1, 2014) [“MacNaughton”]
107. In 2010-11, of 1063 complaints (828 filings) received by the BCHR Tribunal, only 38 made it to the Tribunal stage and 20 of these were dismissed. http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2010-2011.pdf (Last accessed May 1, 2014). In 2012/ 13, 1028 complaints were received, of which 51 led to Tribunal hearings. Forty percent of complaints were rejected for filing at the first instance in 2012/13. (Pg. 2 of 2012/13 Annual Report). Online; http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf (Last accessed May 1, 2014)
108. There is currently no specific legal authority for the Tribunal Registrar to undertake the screening. In the 2012/ 13 BCHRT Annual Report, the Tribunal specifically asked the government to amend the Code to give the Tribunal Registrar authority to screen complaints.
109. MacNaughton, p.5.
110. The 2011-12 BCHRT annual report notes for example that Complainants with counsel succeeded in 56% of their cases. Without counsel, the complainants succeeded in only in 31% of the cases. Pg. 11. Online : http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2011-2012.pdf. (Last accessed May 1, 2014). In 2012-13, complainants with counsel succeeded in 71% of the cases, those without counsel succeeded only in 36% , pg 9. Online: http://www.bchrt.gov.bc.ca/annual_reports/info/annual_report_2012-2013.pdf (Last accessed May 1, 2014)
111. BC Human Rights Coalition. Online: http://www.bchrcoalition.org (Last accessed May 1, 2014)
112. The 2011-12 BCHRT Annual Report noted it was taking 280 to 400 days from application to resolution .
113. See: Perry v. Strata #49 Council, 2014 BCHRT 7. However, the complaint’s case was dismissed not on the merits, but because the complainant did not specifically base her case on age discrimination.
114. Chantal, C. Canada and the Convention on the Rights of Persons with Disabilities , Social Affairs Division

5 December 2012HillNote Number 2012-89-E. Online: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-89-e.htm (Last accessed May 1, 2014). Also see: World Health Organization. Guidelines on the provision of manual wheelchairs in less resourced settings. Online: http://www.who.int/disabilities/publications/technology/English%20Wheelchair%20Guidelines%20(EN%20for%20the%20web).pdf?ua=1 (Last accessed May 1, 2014) [ “WHO Wheelchair Guidelines”]

1. WHO Wheelchair Guidelines, pg. 22.
2. Ombudsperson Act [RSBC 1996] c. 340. [“Ombudsperson Act”]
3. Office of the Ombudsperson. “Administrative fairness”. Online : https://www.ombudsman.bc.ca/home/fairness-checklist ( last accessed May 1, 2014).
4. Document Review - staff reviewed documents obtained from the health authorities and provided to office by the public and other interested organizations. Information reviewed included: legislation, regulation and policies; government letters of expectations, international, national and provincial documents that establish basic principles and standards for the care of seniors, guidelines, directives and bulletins, statistics related to the population of seniors in B.C., organizational charts and job descriptions; program descriptions, policies, guidelines and public information; handbooks, brochures, booklets and online information about home and community care; information about programs and services offered in other jurisdictions; service agreements between health authorities and contracted service agencies; reports about seniors’ care in B.C. and other jurisdictions
5. BC Ombudsperson (February 2013). No longer your decision: British Columbia’s process for appointing the public guardian and trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.ombudsman.bc.ca/images/resources/reports/Special_Reports/no_longer_your_decision.pdf (Last accessed May 1, 2014) [ “No longer your decision”]
6. Ombudsperson Act, s. 10(1).
7. Ombudsperson Act, s. 10 (2)
8. An administrative fairness checklist can be found in the Ombudsman’s 1990 Annual Report to the Legislative Assembly.
9. Public Guardian and Trustee Act [RSBC 1996] c. 383, s. 17(2) (“PGTA”)
10. PGTA, s. 17(1) (c), (d), and (e).
11. PGTA, s. 17(1) (b).
12. See section 16(3) Health Care (Consent) And Care Facility (Admission) Act [RSBC 1996] c.181 . Online: http://www.bclaws.ca/Recon/document/ID/freeside/00_96181_01#section16 (Last accessed May 1, 2014)
13. Patients Property Act [RSBC 1996] c. 349.
14. These changes are the direct result of the recommendations made in the BC Ombudsperson 2013 report “No longer your decision.”
15. BC Ministry of Health (2005) Guide to the Mental Health Act, pg. 11. Online: http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf (Last accessed May 1, 2014)
16. Mental Health Act, sections 25(2), 25(4.1) [ “MHA”]
17. Mental Health Review Board. Online: http://www.mentalhealthreviewboard.gov.bc.ca/ (Last accessed May 1, 2014).
18. Constitution Act, 1982 (80). Part I Canadian Charter of Rights and Freedoms.
19. MHA, s. 31.
20. Mental Health Review Board. “Commonly asked questions. What are the limits of what the review panel can decide? “ Online: http://www.mentalhealthreviewboard.gov.bc.ca/questions.html# (Last accessed May 1, 2014)
21. Romano, L., Wahl, J.A. & Meadus, J. (2008). Submission to the Law Commission of Ontario concerning the law as it affects older adults. Advocacy Centre for the Elderly, pg. 7.Online : http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf (Last accessed May 1, 2014)

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."

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

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.

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."

An application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. See "appellant" and "respondent."

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."

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 highest level of court in the province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

To change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "amended separation agreement."

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

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

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."

A person who holds property in trust for the benefit of another person. See "trust."