A. Aging in Place
It is a widely accepted principle that older adults should be empowered to “age in place”, and to receive needed services and supports in the communities where they live. In practice, older adults face many barriers that may lead to institutionalization, such as lack of accessible housing and services, and inadequate social supports. For example, regulations governing the allowable amount of care that Community Care Access Centres can approve have the effect of significantly limiting the availability of home care. Further, due to scarce resources, Community Care Access Centres may not be able to provide even mandated services.
“We encourage the LCO to review the requirements for services to be provided by the Community Care Access Centres as mandated by the Long Term Care Act, the lack of regulations in respect to the criteria for access and eligibility to the various services, the funding agreements between the Local Health Integration Networks and Community Care Access Centres, whether these support the obligations of the Community Care Access Centre to provide the mandatory services as listed in the Long Term Care Act and to find out whether individuals are obtaining the full benefit of the law.”
– Advocacy Centre for the Elderly
B. Standard Setting: Promoting Security for Institutional Residents
Institutional living settings for older adults include care homes (commonly referred to as “retirement homes”) and long-term care facilities. Long term care facilities are the subject of special regulatory regimes, such as the Nursing Homes Act,[45] Homes for the Aged and Rest Homes Act[46] and the Charitable Institutions Act.[47] These statutes set out requirements for licensing, admissions, care plans, charges and fees, and inspections. Legislation has been passed that will, upon proclamation, repeal these statutes and replace them with a new Long Term Care Homes Act, 2007.[48] Living accommodation that falls within the scope of these Acts is exempted from the protections of the Residential Tenancies Act, 2006. [49]
“Retirement homes” are not the subject of comparable specific, comprehensive legislation. They fall within the ambit of the general provisions of the Residential Tenancies Act. That Act also sets out some special provisions for “care homes”, including specific standards for tenancy agreements and termination of leases or “transfer out” of tenants in these facilities. Advocates have raised concerns regarding the lack of comprehensive regulation of the care home industry, and have identified significant issues related to improper evictions, use of restraints, failure to accommodate the disability-related needs of residents, and inadequate procedures for addressing complaints. In 2007, the Ontario Seniors Secretariat conducted public consultations on regulation of retirement homes. Based on the results of these consultations, the government committed to introduce consumer protection legislation that would set standards of care and service for retirement homes.[50] Legislation has not yet been introduced.
This lack of regulation is the cause of widespread concern, particularly as there is a perception that the private care system is rapidly expanding. Retirement homes may be operating as de facto long-term care homes, without the legislative requirements and protections available in those homes. For example, some retirement homes have created “locked-in units” to control the behaviours of the residents, raising concerns that very serious abuses of basic rights may be occurring without any protections or oversight.
Concerns have also been raised regarding substandard homes and the adequacy and transparency of the available mechanisms for monitoring and addressing substandard conditions.[51] Given the vulnerability of those living in institutional settings, standards, protections and enforcement mechanisms are extremely important. Consultees pointed to numerous instances of insufficient standards, protections and enforcement mechanisms in long-term care homes. These include standards for staffing and resident care (such as concerns regarding the use of incontinence products) and protections against elder abuse in such settings.
C. Promoting Dignity, Independence, Participation and Diversity
Institutional living raises many complex challenges, and promoting the principles of dignity, independence, participation and respect for diversity in such settings requires special consideration. As an example, difficult issues arise with respect to the expression of sexuality in long-term care settings. Sexual expression is a normal part of a healthy life and most persons living in non-institutional settings are in a position to make their own choices with respect to their sexuality. However, in a group environment where many of the residents may have cognitive disabilities or may otherwise be vulnerable to abuse or exploitation, and where the institutional staff have a duty of care to prevent sexual abuse and sexual exploitation, it is challenging to both support normal sexuality and to ensure that residents are protected from unwanted activities. Additional barriers may be experienced by LGBT older adults, who often still face stigma from care home staff or other residents, or attempts by members of their biological families to regulate their sexuality.
As well, conflicts arise between the rights of older adults in what is, after all, their home, and the rights of the workers providing their care. For example, people who are not living in an institutional setting generally have the choice as to whether to smoke; in an institutional setting this must be balanced against the rights of workers not to be exposed to second hand smoke.
A major issue in long-term care is “First Available Bed” policies.[52] These are hospital policies that require patients to accept the “first available bed” in a long-term care facility. These not only significantly limit the choices available to older adults about the fundamental question of where they will live, but by placing older adults in settings far from family, friends and other supports systems, they also severely impact on the security, participation and independence of those affected. Older adults may find themselves in placements that are substandard, or that do not meet their needs. The Advocacy Centre for the Elderly takes the position that these policies are not consistent with the law, which places the emphasis on the person’s own choice or what is in their best interest.
The use of secure units and restraints raises profound questions related to basic rights. The Advocacy Centre for the Elderly points out that there is no legal authority for homes to restrain or detain residents, except under very narrow circumstances. In some cases, there are legitimate safety reasons for the detention of older adults who are, for example, mentally incapacitated and pose a risk to themselves. In other cases, detention is problematic. For example, some homes have policies preventing all residents from leaving without an escort. As there is no process for challenging detentions other than an application to the court, these can be difficult issues to resolve.
The LCO heard from a number of organizations about the importance of having residential options for older adults that recognize and support their diversity. For older adults, a lack of culturally appropriate services may leave them feeling lonely and isolated. Concerns were raised, for example, about a general lack of LGBT sensitivity training in the retirement home community. Services to diverse communities may be provided either through supports and sensitivity training at general purpose retirement or long-term care homes, or the creation of specialized settings to meet the needs of specific communities, such as the LGBT or African Canadian community. The Ontario Seniors Secretariat has very recently developed a toolkit for residential settings for seniors, Diversity in Action, providing guidance for retirement and long-term care homes on providing culturally appropriate and respectful services to older adults from diverse backgrounds.[53]
D. Conclusions
The principle of “aging in place” is fundamental to any consideration of the living environments of older persons. As well, although only a minority of older adults lives in institutional settings, because these environments raise unique and complex issues, they must be given careful consideration in the development of any framework. Questions to be considered include:
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