Legal Issues in Residential Care
Seniors First BC has also developed an online ‘wikibook’ or ‘ebook’ on issues in residential care – Legal Issues in Residential Care: An Advocate’s Manual.
The manual takes a client-centred, advocacy perspective to describe and understand the common legal matters affecting people who apply for or live in residential care facilities, as well as those who care about and support them.
The focus of this e-book is on:
- licensed residential care for adults–including the for profit and not for profit care facilities, private hospitals, and extended care hospital beds.
- legal issues in these facilities-which includes policies, procedures, regulations, laws, any administrative review or appeal processes.
It is not intended to be a comprehensive statement of the law, but a useful foundation for considering any legal issues arising.
The e-book begins with an overview of the statutory framework for residential care facilities and residents’ rights declarations. The subsequent chapters focus on five key areas of law in residential care:
- Legal issues related to admission and transfer – such as the admission process, and transfer from hospital or other settings, consent to move into a residential care facility (particularly where the prospective resident has diminished capacity), use of the Mental Health Act as a transfer mechanism; the care plan and the contract, and responsibility for fees.
- Legal issues arising while living in residential care – which includes for example, residents’ rights, standards of care, professional care, informed consent, inappropriate use of physical and chemical (medication) restraints, resident safety (including preventing harm from other residents), abuse and neglect, control over residents, control over access to residents (visitors).
- Rights, remedies and problem resolutions – how to resolve problems: civil and administrative remedies, enforcement, mandatory reporting, complaints, and criminal law.
- Capacity & consent – treatment and personal care decisions, use and misuse of advance care planning, consent in the context of physical and chemical restraints in care facilities, and improving understanding about the requirements of consent.
- Substitute decision-making – including the use of power of attorney, advance directives, and representation agreements in residential care.
Residential Care in the Context of Elder Law
Some of the laws and regulations identified in our Residential Care Manual such as the Community Care and Assisted Living Regulation and the Residential Care Regulation regulate care facilities for persons with chronic or progressive conditions, primarily due to the ageing process. The same laws might also apply to and regulate facilities for also a wider group of people receiving care. This includes facilities providing hospice (palliative) care, homes for people with developmental disabilities or acquired brain injury and facilities for people with substance abuse or mental disorders. The focus in our manual, however, is largely on seniors who make up the vast proportion of the resident population in the care facilities.
Ombudsperson Reports – The Best of Care
The Ombudsperson conducted a 3 year investigation into issues in residential care in BC. In December 2009, the Ombudsperson issued The Best of Care: Getting it Right for Seniors in British Columbia (Part 1), the first of two reports on the Ombudsperson’s systemic investigation into the care of seniors in B.C. The first report included ten recommendations made to the then Ministry of Health Services and Ministry of Healthy Living and Sport in the following areas:
- rights for seniors in residential care;
- access to information about residential care; and,
- the role of resident and family councils.
On February 14, 2012 the Ombudsperson released The Best of Care: Getting it Right for Seniors in British Columbia (Part 2) – a 400 plus page report in 2 volumes – Vol 1 and Vol 2. . The report makes 143 findings and 176 recommendations. The recommendations are designed to improve:
- home and community care;
- home support;
- assisted living; and,
- residential care services for seniors.
The Ombudsperson releases updates each year on the status of the recommendations – the most recent being from June, 2015.
Choosing a Residential Care Facility
The government of BC has a booklet – Planning for Your Care Needs – Help in Selecting a Residential Care Facility. It also has a set of web pages on Care Options and Costs.