Chapter Four Legal Issues in Residential Care References

References

1-50

1. Resident Bill of Rights, s. 1.
2. Residential Care Regulations. B.C. Reg. 96/2009 , s. 81 (3).[subsequently be referred to as ”RCR”]
3. RCR, s. 81 (3).
4. RCR, s. 81 (2).
5. RCR, s. 81 (4).
6. RCR, s.81 (4) (b).
7. RCR, s. 1.
8. Representation Agreement Act [RSBC 1996] c.405
9. RCR, s. 1.
10. See Patient Care Quality Review Board, Annual Report, 2010.
11. Section 60 of the Regulations requires the Operator to have a prompt, effective and fair dispute resolution process in place. Plus the Operator is required to ensure no retaliation occurs against the resident.
12. See for example the Coroner Inquiry into the death of Eldon Mooney, where the “natural death” was caused by choking and aspiration. BC Coroner Services. “Coroner Report into the Death of Eldon Mooney”. Case 2011-278-0032. North Vancouver Online: http://www.pssg.gov.bc.ca/coroners/reports/docs/coroners-report-mooney-north-vancouver.pdf [“Coroner Services, Eldon Mooney”] (Last accessed January 9, 2016).
13. RCR, s. 85 (1) (a).
14. RCR, S. 85 (1) (c) (ii.1) and (iii).
15. Law Reform Commission of Saskatchewan. (May 2013). Civil Rights in Saskatchewan Long-term Care Facilities. Final Report, pg. [“ Law Reform Commission of Saskatchewan”]
16. Law Reform Commission of Saskatchewan.
17. RCR, s. 41 (1).
18. RCR, s. 89 (1) and RCR, s. 92 (2).
19. RCR, s. 91 (2) (b).
20. RCR, s. 81 (2) (a). This section identifies the participants as the resident (person in care) or “ if the person in care is not capable of participating, the person in care's parent or representative”
21. RCR, s. 81.
22. RCR, 81 (4) (b).
23. Guide for Vancouver Coastal Health and Providence Health Care owned and contracted residential care facilities. Tools for enhancing resident and family involvement in residential care facilities, pg. 23 [“Guide Toolkit”]. Resident/Family Involvement. VCH Community Engagement.Sept.2011
24. RCR, s. 50 (1) and (2).
25. RCR, s. 50 (1) and (2).
26. This has consistently been shown in British Columbia, across Canada and the United States. See for example: Alamgir, H., Yu, S., Chavoshi, N. & Ngan, K. (2008). Occupational injury among full-time, part-time and casual health care workers. Occupational Medicine, 58(5), Pg. 348-354. Also: MacPhail, F. & Bowles, P. (August 2008). Improving the economic security of casual workers in BC. Canadian Centre for Policy Alternatives. Online: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC_Office_Pubs/bc_2008/CCPA_casual_workers_full.pdf (Last accessed January 9, 2016).
27. Ombuds Best of Care, pg. 254-6.
28. RCR, s. 42 (1).
29. McGregor, M.J., Tate, R.B. Ronald, L.R. McGrail, K. M. et al. (2010). Trends in long-term care staffing by facility ownership in British Columbia, 1996 to 2006. Health Reports, 21 (4), Statistics Canada. Cat. 82-0003 X.
30. RCR, s. 42 (2).
31. RCR, 42 (3).
32. See for example, BC Coroner Services, Eldon Mooney.
33. RCR, s. 9.
34. Ombuds, Best of Care, Finding 137, Recommendation 169.
35. Cornish, M. & Pickel, J. (November 2007). Legal opinion: validity of continence care practices and policies in long term care homes. Online http://ofl.ca/wp-content/uploads/2007.11.19-Report-LongTermCare.pdf (Last accessed January 9, 2016) [“Cornish & Pickel”]
36. Ombuds, Best of Care, p. 259.
37. Cornish & Pickel.
38. Ombuds, Best of Care.
39. See: Ministry of Health. Community Care Facilities Licensing Branch. Choosing a care facility or home guide. Online: http://www2.gov.bc.ca/assets/gov/health-safety/home-community-care/care-options-and-cost/pdf/choosing_a_residential_care_home.pdf (Last accessed January 9, 2016). Also: Vancouver Coastal Health (June 2013). Information on residential care. Online: http://www.vch.ca/media/Introduction-to-Residential-Care-Handbook-June-2013.pdf (Last accessed January 9, 2016).
40. Some falls may occur as a result of resident conflict (a resident being pushed by another resident.
41. Capezuti, E., Evans, L., Strumpf, N., & Maislin, G. (June, 1996). Physical restraint use and falls in nursing home residents. Journal of American Geriatrics Society, 44(6), 627-33.
42. Luo, H., Lin, M., & Castle, N. (Feb. 2011). Physical restraint use and falls in nursing homes: a comparison between residents with and without dementia. American Journal of Alzheimer’s Disease and Other Dementias, 26(1), p. 44-50. Also: Tang, W., Chow, Y., & Koh, S. (2012). The effectiveness of physical restraints in reducing falls among adults in acute care hospitals and nursing homes: a systematic review. JBI Library of Systematic Reviews, 10(5), 307 – 351.
43. Iyer, P.W. (ed.) (2006). Nursing Home Litigation: Investigation and Case Preparation. (2nd. Ed.) Lawyers & Judges Publishing Company, pg. 372.
44. Law Reform Commission of Saskatchewan, pg. 2.
45. Criminal Code of Canada, R.S., 1985, c. C-46 s. 279 (2). s. 279 Forcible confinement.
    1. Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
       1. (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
       2. (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. Non-resistance
    2. (3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
46. RCR, s. 9 (1) and (2).
47. Ombuds, Best of Care, Finding 139 and Recommendation 171.
48. Ministry of Health Home and Community Care Policy Manual. Chapter: 6 Residential Care Services Number: 6.J- Movement of Clients – Facility Closures Or Renovations [Effective: October 15, 2012]
49. See letter from Fraser Health to BC Care Providers Association. Online: http://www.bccare.ca/wp-content/uploads/ResponsefromNMurrayFHAApril2014.pdf (Last accessed January 9,2016).
50. 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 January 9, 2016). [“Best practice guideline for dementia “]
51. 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 Canadian Institute for Health Information. (2009) Antipsychotic drug use in seniors. Analysis in Brief.
52. 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 January 9, 2016). [“BC anti-psychotic drug review”]
53. BC anti-psychotic drug review. See, RCR, Division 5, “Use of restraints”, s. 73-75.
54. BC anti-psychotic drug review, pg. 8 and 9.
55. BC Patient Safety and Quality Council. “Call for Less Antipsychotics in Residential care (“CLeAR”) “ Online : http://bcpsqc.ca/clinical-improvement/clear/ (Last accessed January 9, 2016)
56. Best practice guideline for dementia.
57. 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.
58. RCR, s. 57 (1).
59. RCR, s. 57 (2).
60. 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.
61. 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 January 9, 2016). [“Ministry of Health Policy Communiqué.”]
62. Ministry of Health Policy Communiqué.
63. BC Ombuds, Best of Care, Finding 113 and Recommendation 144.
64. RCR, s.60 (b).
65. AGA, s. 51 (e) (iii).
66. AGA, s. 51 (e) (iii).
67. RCR, s. 78.1 (e) (i).
68. 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.
69. RCR, s. 58 (1).
70. RCR, s. 58 (2).
71. 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.
72. 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.
73. RCR, s. 77.
74. 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). [Last accessed January 9, 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 January 9, 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 January 9, 2016)
75. 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).
76. RCR, Schedule D, Reportable Incident.
77. Drance, E. (May 2013). Resident to resident aggression in residential care. Friesen Conference, Simon Fraser University, Vancouver, BC.
78. 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.
79. 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.
80. (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.
81. 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 January 9, 2016)
82. RCR, s.77 (1) to (3).
83. See Coroner Services, Eldon Mooney.
84. 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 January 9, 2016)
85. ACE.
86. RCR, s. 88.
87. AGA, s. 45 (1).
88. ACE.
89. 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 January 9, 2016)
90. Residential Care Regulations, B.C. Reg. 96/2009, s. 1. (“RCR”)
91. RCR, s. 74 (1).
92. RCR, s. 74 (1) (b).
93. RCR, s. 73 (3) (a).
94. RCR, s. 73 (3) (b).
95. RCR. S. 75 (2).

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

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

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."

A legal right to have and use a thing that is enforceable in court. See "possession."

In law, (1) a lawyer's advice to their client, (2) a lawyer's analysis of a legal problem, or (3) the views of an expert on an issue in an action. See "expert evidence" and "opinion evidence."

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."

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

(1) A reply, a rebuttal, an answer to a court proceeding or an application, or (2) a statement as to why a particular claim or application should not succeed.

Forcing someone to do something through psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or apply to set aside that agreement.

(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."

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

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

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.

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

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.