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==Medications==
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Families often express concerns that antipsychotic drugs ([[Chapter Four Legal Issues in Residential Care References|51]]) 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. ([[Chapter Four Legal Issues in Residential Care References|52]]) 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.([[Chapter Four Legal Issues in Residential Care References|53]])
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.
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.([[Chapter Four Legal Issues in Residential Care References|54]])
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. ([[Chapter Four Legal Issues in Residential Care References|55]]) The use of anti-psychotic in other Canadian jurisdictions has also been recognized as high and problematic.
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.([[Chapter Four Legal Issues in Residential Care References|56]])
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:
* 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. ([[Chapter Four Legal Issues in Residential Care References|57]])
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.
===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. ([[Chapter Four Legal Issues in Residential Care References|58]]) 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.” ([[Chapter Four Legal Issues in Residential Care References|59]])* “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."([[Chapter Four Legal Issues in Residential Care References|60]])
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.
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. ([[Chapter Four Legal Issues in Residential Care References|61]]) 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?===
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. ([[Chapter Four Legal Issues in Residential Care References|62]]) 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.” 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 ([[Chapter Four Legal Issues 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. Residential Care References|63]])
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.([[Chapter Four Legal Issues in Residential Care References|64]]) 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.([[Chapter Four Legal Issues in Residential Care References|65]])
===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. ([[Chapter Four Legal Issues in Residential Care References|66]])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. ([[Chapter Four Legal Issues in Residential Care References|67]]) 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. ([[Chapter Four Legal Issues in Residential Care References|68]]) 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. ([[Chapter Four Legal Issues in Residential Care References|69]]) 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. ([[Chapter Four Legal Issues in Residential Care References|70]]) Also, they 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. ([[Chapter Four Legal Issues in Residential Care References|71]])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”?===
==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. ([[Chapter Four Legal Issues in Residential Care References|72]])
===What Do We Mean?===
In 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 are “reportable” to Licensing; they are simply recognized as having different causes and needing different responses than do abuse or neglect situations. ([[Chapter Four Legal Issues in Residential Care References|73]])
“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 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.([[Chapter Four Legal Issues in Residential Care References|74]])
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.
* 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. ([[Chapter Four Legal Issues in Residential Care References|75]]) 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.
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. ([[Chapter Four Legal Issues in Residential Care References|76]])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.”([[Chapter Four Legal Issues in Residential Care References|77]])
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. ([[Chapter Four Legal Issues in Residential Care References|78]]) 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. ([[Chapter Four Legal Issues in Residential Care References|79]]) 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.”([[Chapter Four Legal Issues in Residential Care References|80]])
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. ([[Chapter Four Legal Issues in Residential Care References|81]])In 2012, the Ministry of Health developed best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia. ([[Chapter Four Legal Issues in Residential Care References|82]]) 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.
==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. ([[Chapter Four Legal Issues in Residential Care References|83]]) These incidents include:
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). ([[Chapter Four Legal Issues in Residential Care References|84]]) 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 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. ([[Chapter Four Legal Issues in Residential Care References|85]])
===Reporting is mandatory===
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."([[Chapter Four Legal Issues in Residential Care References|86]])
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.([[Chapter Four Legal Issues in Residential Care References|87]])
===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.([[Chapter Four Legal Issues in Residential Care References|88]])
==Restraints==
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). ([[Chapter Four Legal Issues in Residential Care References|89]]) 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.([[Chapter Four Legal Issues in Residential Care References|90]])
===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."([[Chapter Four Legal Issues in Residential Care References|91]])
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:
Restraints may be used in two circumstances:
:(a) in an emergency, or ([[Chapter Four Legal Issues in Residential Care References|92]]):(b) if there is a prior written agreement to the use of the restraint.([[Chapter Four Legal Issues in Residential Care References|93]])
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.
===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. ([[Chapter Four Legal Issues in Residential Care References|94]]) This “information and advice” is to be documented in the resident’s care plan.([[Chapter Four Legal Issues in Residential Care References|95]])
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. ([[Chapter Four Legal Issues in Residential Care References|96]])
{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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