ALC Issues and Common Challenges

1. ALC Issues and Common Challenges CHRMN Fall conference September 24, 2014 Jane Meadus Katharine Byrick ACE BLG

2. MOST COMMON CALLS TO ACE RE DISCHARGE Relating to discharge from hospital into long-term care • Forcing to go into “wait at home” or “home first programs” • Requiring spouse/family to provide care pending admission to LTCH • Refusal to allow CCAC involvement and application • Refusal to designate ALC • Threats of charges • Requiring person to go to a RH pending admission to LTCH • Refusing application for rehab applications made to certain number / type of LTCH

3. LONG TERM CAREHOMES ACT Long-Term Care Homes Act Part III – Admission to LTCHs – s. 39-55 Process controlled by the CCAC which requires them to comply with the Act and the Regulations (s. 41)

4. ROLE OF CCAC • CCAC role to: • Determine eligibility (includes completion of all documentation except health record and capacity evaluation) • Authorize admission to a LTCH • Assist with choice of homes, if requested • Complete reassessments if necessary (updates) • Obtain informed consent for admission to a LTCH • Keep waiting list for LTCHs

5. CHOICE OF HOMES • Choice of homes is up to the person/SDM • Can choose maximum of 5 homes – there is no requirement to choose 5 homes (O.Reg. 79/10 s. 164(1)) • If in crisis – may choose more homes – not required to choose more (O.Reg. 79/10 s. 164(4)) • Hospitals and CCACs have no authority to require person to choose specific homes • “Invite” yes, “require” no

6. ELEMENTS OFCONSENT - LTCHA Elements of consent • (1) The following are the elements required for consent to admission to a long-term care home: • The consent must relate to the admission. • The consent must be informed. • The consent must be given voluntarily. • The consent must not be obtained through misrepresentation or fraud

7. INFORMEDCONSENT - LTCHA 46.(2) A consent to admission is informed if, before giving it, (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the admission; and (b) the person received responses to his or her requests for additional information about those matters.

8. INFORMATION REQUIRED FOR INFORMED CONSENT 46.(3) The matters referred to in subsection (2) are: • What the admission entails. • The expected advantages and disadvantages of the admission. • Alternatives to the admission. • The likely consequences of not being admitted.

9. CONSENT BY SDM – HEALTH CARE CONSENT ACT Principles for giving or refusing consent 42. (1) A person who gives or refuses consent on an incapable person’s behalf to his or her admission to a care facility shall do so in accordance with the following principles: 1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. 2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

10. BEST INTERESTS Best interests 42. (2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration, (a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable; (b) any wishes expressed by the incapable person with respect to admission to a care facility that are not required to be followed under paragraph 1 of subsection (1); and

11. FACTORS 42(2) (c) the following factors: 1. Whether admission to the care facility is likely to, i. improve the quality of the incapable person’s life, ii. prevent the quality of the incapable person’s life from deteriorating, or iii. reduce the extent to which, or the rate at which, the quality of the incapable person’s life is likely to deteriorate.

12. FACTORS (cont’d.) 42.(2) 2. Whether the quality of the incapable person’s life is likely to improve, remain the same or deteriorate without admission to the care facility. 3. Whether the benefit the incapable person is expected to obtain from admission to the care facility outweighs the risk of negative consequences to him or her. 4. Whether a course of action that is less restrictive than admission to the care facility is available and is appropriate in the circumstances.

13. EXAMPLE of INFORMATION for DISCUSSION • Information about alternative services • Responsibility to pay and maximum amounts that may be charged • Rate reductions that are available and application requirements • Approximate length of waiting lists • Vacancies • How to obtain information, including compliance reports, from the Ministry of Health and Long-Term Care • If person is incapable, how SDM is to make decision (Benes case)

14. CHOICE OF LTCHS LTCHA s. 44 • Where the person/SDM wishes the CCAC shall assist the applicant in selecting homes • Shall consider the applicant’s preferences relating to admission, based on ethnic, religious, spiritual, linguistic, familial and cultural factors • Application can only be made with the consent of the applicant – therefore homes that have not been applied to cannot be “offered” • Applicant may choose any home in the province of Ontario and the CCAC shall work with the CCAC in that area regarding the application

15. RETIREMENT HOMES • Retirement homes may be suggested as alternatives– but must be made clear they are not the equivalent of LTCHs and cannot be used as such (see Nineteenth Annual Report of the Geriatric and Long-term Care Review Committee to the Chief Coroner for the Province of Ontario – September 2009, page 35) • Retirement homes are governed by Residential Tenancies Act, and Retirement Homes Act • Are expensive and may not be sufficient to met the needs of the person • Who can make these decisions? If no attorney/guardian for personal care, may not be anyone who has authority to decide for incapable person

16. PRIVATE/SEMI PRIVATE ACCOMMODATION • No waiting time after admission till person can apply for transfer to another level of accommodation • Can apply for transfer on day of admission; however, may take years to transfer due to alternate waiting list regulation • Will be required to pay for higher level of accommodation, with the possible exception that there was an unforeseen change in circumstances of the person

17. FORM G APPLICATION • If the decision is being made by the competent applicant – no ability to challenge • If the decision is being made by SDM – can challenge if SDM is not complying with the requirements of the HCCA (only after ensuring the SDM understands per Benes) • ONLY CCAC can bring application when decision relates to LTCH admission • Application to determine compliance with s. 42

18. OTHER LEGALCHALLENGES • Application for directions (SDM or CCAC) – where wish is not clear, unclear whether applicable to circumstances, unclear whether expressed when capable or over age 16 • Application to depart from wishes (SDM)

19. HOME FIRST/WAIT ATHOME “PHILOSOPHY” • This is a “philosophy” not a program • Provides person option of returning home when they are eligible for admission to long-term care • No limit on PSW hours that CCAC can provide to allow person to go home (Reg. 386/99 to the Home Care and Community Services Act, s. 3(3))

20. DECISION TO GO HOME • Provide information as to the pros and cons of staying in hospital and waiting long periods of time • No crisis (generally) in hospital • The decision maker will need information about discharge recommendations, as well as services and support available in the community (CCAC and other) in order to make an informed decision.

21. CAN CHOICE LIST BE SHARED WITH HOSPITAL? • As with other types of consent – consent to release personal health information must be voluntary, knowledgeable, relate to the information, and not obtained through deception or coercion (PHIPA s. 18) • Can choice of home be released without specific consent to CCAC to do so? • PHIPA allows information to be released if it for the provision of health care • Additionally – person/SDM can prohibit this information being released to the hospital

22. LEGAL RISKS Legal and reputational risk considerations for physician, hospital and CCAC if allegations of unsafe / inappropriate discharge may include the following: • College proceedings • HSARB proceedings • Civil litigation • Possible coroner review / inquest • Possible police involvement / investigation

23. ALC DESIGNATION vs. ALC COPAYMENT • As of July 1, 2009, all acute and post-acute hospitals were required to use a standardized Provincial ALC Definition • Designation as ALC does not mean person can be charged • May only be charged copayment if meet requirements of s. 10 in Reg. 552 to the Health Insurance Act

24. ALC CO-PAYMENT • Attending physician must designate patient as requiring chronic care and being more or less permanently resident in a hospital or other institution • Only applies to patients who are presently in certain types of public hospitals as set out in the regulations

25. MINISTRY OF HEALTH AND LONG-TERM CARE - MEMOS • Crisis Designation and First Available Bed Policy, February 23, 2011, Ruth Hawkins ADM(A) • ALC patients who refuse an offer of admission to a prior-chosen LTC home bed, May 23, 2012, Rachel Kampus, A/ADM • The Home First Philosophy, January 9, 2013, Catherine Brown (ADM)

26. OTHER RESOURCES • Provincial ALC Definition, Cancer Care Ontario • Hospital Complex Continuing Care (CCC) Payment: Questions & Answers, Updated June 2008, Ministry of Health and Long-Term Care, • Discharge from Hospital to Long-Term Care: Issues in Ontario, February 2014, Jane E. Meadus • Tips & Traps When Dealing with Long-Term Care, Jane E. Meadus

27. ADVOCACY CENTRE FOR THE ELDERLY • E-NEWSLETTER is published twice a year • To receive copies send email to gillardt@lao.on.ca • Other publications can be obtained from : • CLEO – www.cleo.on.ca • NICE Network – www.nicenet.ca • Seniors’ Secretariat – www.seniors.gov.on.ca

28. Thank you!!! Jane E. Meadus meadusj@lao.on.ca Phone: 416-598-2656 Fax: 416-598-7924 www.acelaw.ca Katharine L. Byrick kbyrick@blg.com Phone: 416.367.6012 Fax: 416.361.7399 www.blg.com