ALC Issues and Common
Challenges
CHRMN Fall conference
September 24, 2014
Jane Meadus
ACE
Katharine Byrick
BLG
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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
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LONG TERM CARE
HOMES 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)
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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
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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
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ELEMENTS OF
CONSENT - LTCHA
Elements of consent
46.(1) The following are the elements required for consent
to admission to a long-term care home:
1.The consent must relate to the admission.
2.The consent must be informed.
3.The consent must be given voluntarily.
4.The consent must not be obtained through
misrepresentation or fraud
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INFORMED
CONSENT - 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.
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INFORMATION REQUIRED
FOR INFORMED CONSENT
46.(3) The matters referred to in subsection (2) are:
1. What the admission entails.
2. The expected advantages and disadvantages of
the admission.
3. Alternatives to the admission.
4. The likely consequences of not being admitted.
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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.
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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
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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.
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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.
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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)
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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
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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
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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
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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
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OTHER LEGAL
CHALLENGES
• 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)
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HOME FIRST/WAIT AT
HOME “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))
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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.
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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
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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
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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
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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
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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 priorchosen LTC home bed, May 23, 2012, Rachel Kampus,
A/ADM
• The Home First Philosophy, January 9, 2013, Catherine
Brown (ADM)
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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
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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
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Thank you!!!
Jane E. Meadus
meadusj@lao.on.ca
Katharine L. Byrick
kbyrick@blg.com
Phone: 416-598-2656
Fax: 416-598-7924
Phone: 416.367.6012
Fax: 416.361.7399
www.acelaw.ca
www.blg.com
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