Seniors Rights Through the Continuum of Care. Judith Wahl Advocacy Centre for the Elderly

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1 Seniors Rights Through the Continuum of Care Judith Wahl Advocacy Centre for the Elderly

2 Advocacy Centre for The Elderly 2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3 Tel Fax wahlj@lao.on.ca Website * NEW

3 Advocacy Centre for the Elderly Specialty Community Legal Clinic In operation since 1984 Funded by Legal Aid Ontario Non Government Organization with Non-Profit and Charitable status Do not charge fees for services If retained to represent (so more than summary advice), clients must meet financial eligibility guidelines May make exceptions to financial guidelines if issue a matter of access to justice or of significance to the greater seniors community Will ask clients, if financially able, to contribute or pay for court fees or certain out of pocket costs related to their legal matters If not able to contribute, ACE has a small fund to cover these costs so lack of ability to pay expenses is not a barrier to service

4 Advocacy Centre for the Elderly Areas of Practice Issues that have a greater impact on older adults Examples (including but not limited to) Issues related to mental capacity Health care consent and decision making Powers of attorney and advance care planning Long term care legal issues Community care legal issues Hospital discharge and care issues Legal Issues in Retirement homes and other seniors housing Elder Abuse (of all types) Consumer Issues

5 Advocacy Centre for the Elderly Services include Client Services Client advice and advocacy/ representation (individuals and groups) Legal Information to Service providers ( some limitations on advice that can be given due to potential for conflict) Test Case litigation Representation at any level of court (Small claims to Supreme Court of Canada) and a number of different tribunals (including but not limited to Consent and Capacity Board, Health Services Appeal Review Board, Health Professions Appeal and Review Board, Human Rights Tribunal, Criminal Compensation Board) and in inquests

6 Advocacy Centre for the Elderly Public Legal Education Pamphlets, Booklets, Plain language legal information Partners with Community Legal Education Ontario to create pamphlets LongTerm Care Facilities in Ontario: the Advocates, Manual 600 page plus text on the law related to long term care homes. Includes chapters on retirement home law, community care law, discharge from hospital legal issues presently out of print as being updated although requests for particular chapters may be made and will be sent by Workshops and presentations at conferences Written materials- Papers, discussion sheets etc

7 Advocacy Centre for the Elderly Public Legal Education Materials for Health professionals ( Consent and Capacity Tool) available from the National Initiative for Care of the Elderly Website ACE newsletter to subscribe send address to Tammy Gillard at ACE at gillardt@lao.on.ca

8 Advocacy Centre for the Elderly Law Reform and Community Development Preparation of briefs and commentaries on proposed legislation and policy Submissions to Committees of the Legislature and other policy makers Attend and participate as Stakeholder representatives on government consultations, particularly as conducted at the Ministry of Health and Long Term Care Community Development projects - Example - Project funded by Trillium Foundation to assist 18 communities across Ontario to develop Community Response Networks to raise awareness, prevent and respond to elder abuse

9 Advocacy Centre for the Elderly Cross Provincial jurisdiction for Public Legal Education and Law Reform activities Cross province jurisdiction for Client services Assist seniors across province primarily through summary advice and advocacy that can be done over the phone and without court/ tribunal representation In greater Toronto region, provide advise and advocacy over the phone and also representation before courts and tribunals

10 Advocacy Centre for the Elderly Service hours 9 to 5 M, T, W, Fr; 1 to 5 on Thursdays New Intake primarily M,W.Fr Will meet clients at home or in place of residence (hospital, long term care etc) Request that people contact the office by telephone to initiate service through intake process 8 staff 5 lawyers 3 support staff, two of whom also are part of intake process

11 Types of Issues for which Seniors have contacted ACE for assistance Most common inquiry by seniors to ACE concerns loss of the senior s authority/ when others may decide for the senior and when does he or she have the right to make decision for him or herself Also systemic issues - when systems assume that seniors do not have rights, usually on the basis of wrong assumptions about the law

12 Hospital Issues Rights in the Discharge process Dealing with these cases last 10 years Now almost daily calls on legality of First available bed policies of hospitals See paper on TRANSFER FROM HOSPITAL TO LONG-TERM CARE: REFRAMING THE ETHICAL DEBATE FROM THE PATIENT S PERSPECTIVE* available on ACE website or by request to wahlj@lao.on.ca

13 Discharge from Hospital Determining that a person is ALC (no longer acute care) standard definition from Cancer Care Ontario as part of the Wait Times Strategy

14 ALC Standard Definition Definition: When a patient is occupying a bed in a hospital and does not require the intensity of resources/services provided in this care setting (Acute, Complex Continuing Care, Mental Health or Rehabilitation), the patient must be designated Alternate Level of Care (ALC)1 at that time by the physician or her/his delegate. The ALC wait period starts at the time of designation and ends at the time of discharge/transfer to a discharge destination2 (or when the patient s needs or condition changes and the designation of ALC no longer applies).

15 ALC Standard Definition Note 1: The patient s care goals have been met or progress has reached a plateau or the patient has reached her/his potential in that program/level of care or an admission occurs for supportive care because the services are not accessible in the community (e.g. social admission ). This will be determined by a physician/delegate, in collaboration with an interprofessional team, when available.

16 ALC Standard Definition Note 2: Discharge/transfer destinations may include, but are not limited to: home (with/without services/programs), rehabilitation (facility/bed, internal or external), complex continuing care (facility/bed, internal or external), transitional care bed (internal or external), long term care home, group home, convalescent care beds, palliative care beds, retirement home, shelter, supportive housing. This will be determined by a physician/delegate, in collaboration with an interprofessional team, when available.

17 ALC Standard Definition Final Note: The definition does not apply to patients: waiting at home, waiting in an acute care bed/service for another acute care bed/service (e.g., surgical bed to a medical bed), waiting in a tertiary acute care hospital bed for transfer to a non tertiary acute care hospital bed (e.g., repatriation to community hospital).

18 Comments on Standard Definition Overall definition is not bad but key is how it is applied and interpreted- already getting calls about interpretation Health professionals cannot decide on peoples destination may recommend but destination a matter of choice Not deal with fact that cannot abandon a patient ( or otherwise professional misconduct) Also consent required to admit to LTC homes And person must agree to rent a bed/ room/ apartment in a retirement home so cant require transfer to retirement home without consent And also issues of privacy ( PHIPA) that must be considered before sending health information about patient to transitional units that are not officially part of hospital -

19 Discharge from Hospital- ACE analysis No longer need acute care and discharge signed by physician If need LTC cannot be abandoned Right to choose up to THREE places to be on waiting list- in legislation To change this legislation would have to be changed requiring debate in the legislature Choice is of any place and cannot be required to pick particular destinations such s places from short lists Hospital has no right to choose places for person May be offered other alternatives not of choice but not be required to take them

20 Discharge from Hospital if need LTC or other care level Charges when ALC cannot exceed CCC rate - Health Insurance legislation authorizes only that charge Per diem in excess not legal in our opinion No cases yet in court on this issue Hospitals cannot charge a hospitality charge If SDM making decision, must make decisions in accordance with patients wishes expressed when capable or in best interests Not all LTC homes suitable for every patient that needs LTC Prudent patient and SDM will lok at public reports on homes as part of consideration of home as possible place for placement

21 Discharge from Hospital Is there professional liability for information provided on discharge process if knowledge that not legal or misleading? Something to think about..

22 Transfer to Retirement home pending transfer to LTC, CCC, Rehab, Palliative Care etc Cannot be required to rent accommodation in a retirement home although may CHOOSE to do so choice cannot be required Issues of liability arise who is liable for rental accommodation placement Other issues of RH placement see ACE article in Spring/Summer 2009 Newsletter

23 Retirement Homes Retirement homes are defined as care homes in the Residential Tenancies Act Are tenancies like any other rental accommodation Tenant has all the same rights as any other tenant including protection against eviction unless eviction in accord with legislation Retirement homes cannot refuse to let a patient return to retirement home if they were renting there and had health crisis and then needed hospital care

24 RTA Reg Definition of Care Home Definition of care home 1. (1) One or more rental units that form part of a residential complex are care homes for the purpose of the definition of care home in subsection 2 (1) of the Act if the rental units are occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the care services is the primary purpose of the occupancy. O. Reg. 516/06, s. 1 (1). (2) Subsection (1) applies even if a third party rents the rental unit from the landlord and provides or arranges to provide both the rental unit and care services to the tenant. O. Reg. 516/06, s. 1 (2). See also Grenadier Case

25 Retirement Homes Retirement homes must provide tenancy agreement Rent must be separated from care services that tenant purchases Retirement home must provide Care Home Information Package (CHIP)

26 Tenancy Agreements Agreement required 139. (1) There shall be a written tenancy agreement relating to the tenancy of every tenant in a care home. 2006, c. 17, s. 139 (1). Contents of agreement (2) The agreement shall set out what has been agreed to with respect to care services and meals and the charges for them. 2006, c. 17, s. 139 (2). Compliance (3) If, on application by a tenant, the Board determines that subsection (1) or (2) has not been complied with, the Board may make an order for an abatement of rent. 2006, c. 17, s. 139 (3).

27 The CHIP Care Home Information Package Information to tenant 140. (1) Before entering into a tenancy agreement with a new tenant in a care home, the landlord shall give to the new tenant an information package containing the prescribed information. 2006, c. 17, s. 140 (1). Effect of non-compliance (2) The landlord shall not give a notice of rent increase or a notice of increase of a charge for providing a care service or meals until after giving the required information package to the tenant. 2006, c. 17, s. 140 (2).

28 CHIP contents 47. The information package referred to in section 140 of the Act must contain the following information: 1. List of the different types of accommodation provided and the alternative packages of care services and meals available as part of the total charge. 2. Charges for the different types of accommodation and for the alternative packages of care services and meals. 3. Minimum staffing levels and qualifications of staff. 4. Details of the emergency response system, if any, or a statement that there is no emergency response system. 5. List and fee schedule of the additional services and meals available from the landlord on a user pay basis. 6. Internal procedures, if any, for dealing with complaints, including a statement as to whether tenants have any right of appeal from an initial decision, or a statement that there is no internal procedure for dealing with complaints. O. Reg. 516/06, s. 47.

29 Questionable Things found and not found in Tenancy agreements and CHIPS Requirement for advance consent rules that conflict with RTA Statements that the place is not a care home Attempts to exempt from care home by agreement Pre consents to being moved within building and to other properties Non disclosure of care costs methods ( ie care charges that are done in 15 minutes increments and not being told what s a care charge is like staff chatting in the hall) Care charges for watering plants, meal service, night checks No keys for the main doors Prohibitions on guests after certain hours or overnights secure units that you cant get out of Requirement that money Advocacy applied Centre for the first Elderly to 2009care services and not to rent

30 Difference between LTC and Care Homes Admission/ entering Tenancy ( but may assess if your care too much) LTC- Must have needs assessed by CCAC, and agreement of Home to admit Monitoring Care Needs Tenancy you are on your own LTC - responsibility of home Meeting On-Going Needs Tenancy you are on your own LTC- responsibility of home Leaving Tenancy 30 days notice or grounds for eviction and special CH ground re care needs LTC if care needs increase; temp move for care; cant be evicted for non payment

31 Long Term Care Legal issues Long term care rights see ACE Manual Before admission right of choice, cant be admitted without consent No info on finances may be disclosed to homes applied to Admission contracts- no requirement to sign one except in respect of additional services paying for and not covered by health dollars and copayment Problems with admission agreements- preconsents which are not legal; exemption from liability also not enforceable Requirements to execute facility advance directive or level of care forms not enforceable Cannot require a DNR as condition of admission

32 Long Term Care Legal Issues After admission, problems of inappropriate charges Many issues related to consent for treatment Many complaints of treatment without consent, especially of drugs like Seroquil Just because person is in a LTC home doesn t mean that consent can be ignored New issues related to sexuality (from limiting capable resident s rights through to failure to protect incapable resident from sexual assault/exploitationmisunderstanding that SDMs can consent to sexual activity of incapable person ( they can t)

33 Long Term Care Legal Issues Rights in the home Resident bill of rights Smoking may be prohibited in home but still rights to smoke if follow the law Going out of the home for social visits Right to decide on own visitors Family cannot direct home staff to stop visitors unless issue of safety even if person not capable Duty of home to keep person safe Duty of home to meet changing care needs no requirement for resident to pay for enhanced services or individual care provider Incontinence Products - LTC home must provide sufficient product at no charge to resident to meet residents need to be clean and dry at all times

34 Community Care Legal Issues Issues of access and eligibility Complaint and Review process for reduction, refusal of services also other grounds of review Right of appeal to Health Services and Appeal Review Board

35 Health Decision Making (particularly in respect to end of life care) Key Issues KEY issue what is consent and what is advance care planning and the differences and connections between these - Who is the decision maker patient or SDM? - If the patient has expressed wishes when capable, or has a written advance directive, how should the health team deal with these and from whom or what should the health team take direction the patient, the SDM, the document?

36 Health Decision Making Consent always comes from a PERSON Patient if Capable, SDM if not Exception in emergency to save life etc Even if Advance care plan, still must get consent from patient or SDM AC plans are NOT consents

37 Treatment taking place in the future is NOT necessarily an advance care plan A Person can give an informed consent to a treatment that takes place or is withheld in the future if the decision for that treatment is relevant considering the persons PRESENT HEALTH CONDITION This is not Advance Care Planning but is Consent 37

38 Decisions can be for present care and for care taking place in the future Plan of treatment.( may) deal with one or more of the health problems that the person is likely to have in the future given the person s current health condition, and may, in addition, provide for withholding or withdrawal of treatment in light of person s current health condition. 38

39 Guide to Advance Care Planning- Ontario Govt Booklet Should have been titled Guide to Health Care Consent and Advance Care Planning Need to get consent or refusal of consent before treatment Advance care planning may be part of the process for patients as it allows them to consider whether they want the SDM highest in the SDM Hierarchy in the HCCA to make treatment decisions for them for them if they are not mentally capable for treatment in the future 39

40 ACP Advance care planning allows patients to select a particular person or persons to act as SDM for them if they are not mentally capable to make decisions about treatment Advance care planning allows patients to express wishes about future treatment and care, about their values and beliefs, about what they believe to be quality of life etc. 40

41 Rules for ACP Only capable people can ACP. Capable patients can express wishes, which may or may not be informed. When a person has an advance care plan about a potential future health condition: consent has not been acquired. if the patient is incapable, consent must still be acquired from a substitute decision-maker(s) (SDM(s)) (except in emergencies) 41

42 Substitute Decision-Makers (SDMs( SDMs)- are you turning to the right one? 1. Guardian of Person 2. Attorney in POAPC 3. Representative appointed by Consent and Capacity Board 4. Spouse or Partner 5. Child or Parent or CAS (Person with Right of Custody) 6. Parent with right of access 7. Brother or Sister 8. Any other relative 9. Public Guardian or Trustee 42

43 How SDMs Make Substitute Decisions It is the responsibility of the SDM to make treatment decisions for an incapable person by: a) following any wishes of the patient expressed when capable that are relevant to the decision; and b) if no wishes are known or are relevant to the particular decision, to act in the best interests of the patient 43

44 Best Interests Definition 1. SDM to consider: a) values and beliefs b) other wishes (i.e. expressed while incapable) c) whether treatment likely to: I. improve condition II. prevent condition from deteriorating III. reduce the extent or rate of deterioration d) whether condition likely to improve or remain the same or deteriorate without the treatment e) if benefit outweighs risks f) whether less restrictive or less intrusive treatment as beneficial as treatment proposed 44

45 SDM s Role - CONSENT not ACP SDMs cannot advance care plan however, if the patient s present plan of treatment deals with one or more of the health problems that the person is likely to have in the future given the person s current health condition, and provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person s current health condition then the SDM can CONSENT or REFUSE consent to these future treatments This is NOT advance care planning. 45

46 Consent to Plan of Treatment Note that if the patient s condition has changed and the original plan of treatment that the patient consented to is no longer valid because of that change, and the patient is now mentally incapable to give or refuse consent to treatment, or a new plan of treatment, then a new informed consent must be obtained from the patient s SDM 46

47 ACE Case examples Physician- Obtained a decision from the Health Professions Appeal and Review Board that treatment without consent by a hospital physician formed professional misconduct for which the physician was sanctioned

48 ACE Case Examples Gaps in Legislation - Obtained a decision from the Ministry of Health and Long Term Care to have the Complex Continuing Care rate be used to determine the charges for a 56 year old man who was a resident in a long term care home. Had the Long term care rates been applied to him, his wife and son living in the community, who were not eligible for welfare and had only limited employment income, would have been forced into poverty. ACE continues to advocate with the Ministry of Health and Long Term Care to address this problem of charges for long term care in the regulations to the new Long Term Care Homes legislation as this problem impacts all families in which one spouse, although young (under 65) must seek admission to a long term care home due to a chronic illness that cannot be managed in their own home. Also affects situations where one spouse over 65 is a resident in a LTC home and spouse in the community is under 65 and a dependent on the resident.

49 ACE Case Examples Problems in the Long Term Care system Successfully advocated for a client to get admission to a long term care home of her choice when the various parties involved in her discharge at the hospital and at the Community Care Access Centre had failed to follow the required process and Ministry policy in respect to admission Assisted a man with a chronic degenerative disorder who could not live independently to get admission to a long term care home. Although he needed long term care, he had been refused admission by all the long term care homes to which he had applied. He also could not get admitted to a hospital because he did not have high enough care needs to be eligible as a complex continuing care patient. ACE staff advocated with the Community Care Access Centre and with the Ministry of Health and Long Term Care to get admission into a long term care home. This advocacy took place over nine months, This case illustrates the need for a formal process and a patient s right to a review of refusals of admission by long term care homes

50 ACE Case examples Property Issues- Set aside a Writ of Possession and successfully defended two mortgage actions that threatened eviction of an elderly widow whose son, grandson and her grandson s common-law spouse conspired to defraud her of title and steal mortgage proceeds using a forged power of attorney Property Issues- Successfully defended a mortgage action brought against a client whose daughter, while ACE s client lived in social housing, fraudulently placed ACE s client on title to the daughter s home and refinanced it in ACE s client s name, before defaulting on the mortgages leaving ACE s client responsible for payment of the mortgage debt

51 ACE Case Examples Civil Action for Restitution - Recovered $28,000 for an older woman with a developmental disability who had been sold 14 different insurance policies over a 30 year period that were of little or no value to her. The Insurance company was specifically informed that the woman had a developmental disability of a nature that she was not capable to contract, but they continued to sell additional policies to her. Court action was commenced for restitution and punitive damages. The action was settled for $28,000 which represented the return of all premiums paid, plus interest, costs, and punitive damages. The funds are now being used to allow this woman to have a private room in a long term care home in which she now resides.

52 ACE Case Examples Duty of an Executor - Recovered a $30,000 testamentary trust left to ACE s elderly disabled client from his mother s estate, administered by his sister who had refused to account or turn over any part of the trust proceeds despite the intervention of two privately-retained solicitors Civil action to recover Debt- Obtained ongoing monthly payments of $1,500/month on a $70,000 debt owed to ACE s elderly widowed client by her former neighbour, a school teacher, who had previously refused to make payment on her debt

53 ACE Case Examples Professional Misconduct Lawyer- Complaint to Law Society- proceedings before Discipline Committee brought against a cognitively impaired client s former solicitor, who charged her $3,000 to prepare a simple will and power of attorneys that were never signed, and whom refused to divulge the content of her file. A finding of professional misconduct was made in September 2008, with disposition on penalty to follow.

54 ACE Case Examples Title and Mortgage Fraud Recovered title to Elderly woman's home where Son and daughter in law changed title to property using POA Mortgage-fraud case where ACE s client who had some cognitive impairment conveyed title to her home-renovation contractor, who then mortgaged her home three times to the extent of $450,000, with the mortgage proceeds having gone to the contractor. Set aside a Writ of Possession and successfully defended two mortgage actions that threatened eviction of an elderly widow whose son, grandson and her grandson s common-law spouse conspired to defraud her of title and steal mortgage proceeds using a forged power of attorney Successfully defended a mortgage action brought against a client whose daughter, while ACE s client lived in social housing, fraudulently placed ACE s client on title to the daughter s home and refinanced it in ACE s client s name, before defaulting on the mortgages leaving ACE s client responsible for payment of the mortgage debt.

55 Advocacy Centre for The Elderly 2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3 Tel Fax wahlj@lao.on.ca Website * NEW

56 Advocacy Centre for The Elderly 2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3 Tel Fax wahlj@lao.on.ca Website * NEW