Endnotes2017-03-03T18:30:48+00:00

[1] For ease of reference, we will refer to older adults living in all three congregate settings as “residents” although persons living in hospitals are legally known as “patients” and persons in retirement homes are “tenants” pursuant to the Residential Tenancies Act.

[2] Law Commission of Ontario, The Law as it Affects Older Adults: Moving the Project Forward – Report of the Preliminary Consultation (December 2008) at 4-10, online: .

[3] Roderick MacDonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass et al. eds., Access to Justice for a New Century: The Way Forward (Toronto: Press, 2005) 19 at 23-24.

[4] Reem Bahdi, Background Paper on Women’s Access to Justice in the MENA Region (2007) at 3, online: .

[5] S.O. 2007, c. 8.

[6] The Canada Post Corporation Act, R.S.C., 1985, c. C-10 makes it an offence to open or abandon mail. Section 48 says: “Every person commits an offence who, except where expressly authorized by or under this Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, knowingly opens, keeps, secretes, delays or detains, or permits to be opened, kept, secreted, delayed or detained, any mail bag or mail or any receptacle or device authorized by the Corporation for the posting of mail.” Section 49 says: “Every person commits an offence who unlawfully and knowingly abandons, misdirects, obstructs, delays or detains the progress of any mail or mail conveyance.”

[7] R.S.O. 1990, c. P. 40.

[8] Ontario, Ministry of Health and Long-Term Care, Hospitals, online: (last modified: 15 June 2009).

[9] Public Hospitals Act, R.R.O. 1990, Reg. 964, Classification of Hospitals, s. 1(1).

[10] Public Hospitals Act, R.R.O. 1990, Reg. 552, s. 10.

[11] Ibid., Table 2.

[12] Canadian Institute for Health Information, The “Younger” Generation in Ontario Complex Continuing Care (June 2007) at 2 and 20, online: .

[13] Canadian Institute for Health Information, Hospital Report: Rehabilitation (2007) at 2, online: .

[14] S.O. 2006, c. 17, s. 2(1).

[15] Ontario Seniors’ Secretariat, Consultation Backgrounder for Ontario’s Consultation on Regulating the Retirement Home Industry (Winter 2006-2007) at 4, online: .

[16] Canadian Housing Mortgage Corporation, Seniors Housing Report (2009) at 4.

[17] Ibid. at 5.

[18] For example, see the Building Code Act, 1992 , S.O, 1992, c. 23; Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4; Health Protection and Promotion Act, R.S.O. 1990, c. H.7; Regulated Health Professions Act, 1991, S.O. 1991, c. 18; Substitute Decisions Act, 1992, S.O. 1992, c. 30; Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A; Personal Health Information Protection Act, 2004, S.O. 2004, c. 3; Human Rights Code, R.S.O. 1990, c. H.19; Criminal Code of Canada, R.S.C. 1985, c. C-46.

[19] R.S.O. 1990, c. N.7.

[20] R.S.O. 1990, c. H.13.

[21] R.S.O. 1990, c. C.9.

[22] Email from Kim Hewitt, Information Request Coordinator, Health System Information Management and Investment Division, Ministry of Health and Long-Term Care, to Lisa Romano, Research Lawyer, ACE (16 July 2009).

[23] Ibid.

[24] Ibid. Ontario has 354 for-profit nursing homes and 113 not-for-profit nursing homes.

[25] Ibid. There are 103 municipal homes for the aged in Ontario.

[26] Telephone conversation between Richard Lee, Senior Financial Consultant, Financial Management Branch, Ministry of Health and Long-Term Care, and Lisa Romano, Research Lawyer, ACE (22 July 2009).

[27] Canadian Institute for Health Information, Antipsychotic Use in Seniors: An Analysis Focusing on Drug Claims, 2001 to 2007 (2009) at 15, online: .

[28] Ontario, Ministry of Health and Long-Term Care, prepared by Monique Smith, Parliamentary Assistant, Commitment to Care: A Plan for Long-Term Care in Ontario (Spring 2004) at 8, online: .

[29] According to the Ministry of Health and Long-Term Care, based on the fall 2008 Levels of Care Classification review of 43,334 residents, 6.26% of these residents are younger than 65 years of age. There are more than 76,000 long-term care beds in the province, and it is not known how these residents were chosen to be classified, therefore the numbers may not be statistically accurate: supra note 22.

[30] Recommendations 22 through 25 deals with specialized facilities and units, Office of the Chief Coroner, Recommendations from the Inquest into the Deaths of Ezzeldine El Roubi and Pedro Lopez (Inquest Dates: January 31 – April 18, 2005).

[31] Neil Gunningham & Duncan Sinclair, “Instruments for Environmental Protection” in Smart Regulation: Designing Environmental Policy (Oxford: Clarendon Press, 1998) at 42.

[32] Ibid.

[33] Ibid. at 44.

[34] Ibid. at 46.

[35] Michael Rustad, “Neglecting the Neglected: The Impact of Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits” (Suffolk University Law School: Legal Studies Research Paper Series, 2007) at 46, online: .

[36] The Honourable Warren Winkler, The Warren Winkler Lectures on Civil Justice Reform, University of Ottawa, Faculty of Law, Civil Justice Reform – The Toronto Experience (September 12, 2007), online: .
[37] It should be noted that ACE exempts the client’s principal family residence in arriving at the total value of assets in determining financial eligibility for services.

[38] Law Society of Upper Canada, Rules of Professional Conduct (2000).

[39] Rule 2.04(1) refers to the definition of a conflict of interest while Rules 2.04(2) and (3) refer to the avoidance of a conflict of interest.

[40] The commentary for Rule 2.01(1) says: “As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with legal matters to be undertaken on the client’s behalf.”

[41] Supra note 36.

[42] R.S.O. 1990, c. F.3, s. 61(2).

[43] McDonnell Estate v. Royal Arch Masonic Homes Society, [1998] 5 W.W.R. 268.

[44] R. v. Khelawon, [2006] 2 S.C.R. 787.

[45] R. v. Campoli, [2009] O.J. No. 2114 (O.C.J.).

[46] S.O. 1992, c. 30.

[47] S.O. 1996, c. 2, Sched. A.

[48] Brad Hagen et al., “Antipsychotic Drug Use in Canadian Long-Term Care Facilities: Prevalence, and Patterns Following Resident Relocation” (2005) 17:2 International Psychogeriatrics 179 at 180.

[49] Supra note 27 at 1.

[50] Ibid. at 16.

[51] Ibid. at 15.

[52] These comments are based on statistics from two different studies indicating that 29.8% and 30.8% of long-term care home residents are prescribed antipsychotic medications: supra note 48 at 188.

[53] Ibid. at 188-189.

[54] Susan Bronskill et al., “Neuroleptic Drug Therapy in Older Adults Newly Admitted to Nursing Homes: Incidence, Dose, and Specialist Contact” (2004) 52 Journal of the American Geriatrics Society 749 at 753.

[55] Ibid.

[56] Paula Rochon et al., “Variation in Nursing Home Antipsychotic Prescribing Rates” (2007) 167 Archives of Internal Medicine 676 at 682.

[57] Health Care Consent Act, s. 11.

[58] Nursing Homes Act, R.R.O. 1990, Reg. 832, s. 127(1).

[59] Nursing Homes Act, Reg. 832, s. 127(2)(b).

[60] Ontario Health Quality Council, Q Monitor: 2009 Report on Ontario’s Health System (2009) at 80-81, online: .

[61] K.P. v. C. P. (April 15, 2004) File No. 7690, Health Professions Appeal and Review Board.

[62] Nursing Homes Act, s. 2(2)6ii.

[63] Health Care Consent Act, s. 17.

[64] College of Physicians and Surgeons of Ontario, Consent to Medical Treatment, Policy Statement #4-05 (January/ February 2006), online: .

[65] Ibid.

[66] The definition of evaluators can be found in Reg. 104/96 pursuant to the Health Care Consent Act.

[67] Email from Lorissa Sciarra, Registrar and Senior Manager, Consent and Capacity Board, to Lisa Romano, Research Lawyer, ACE (19 June 2009).

[68] Office of the Public Guardian and Trustee, The Role of the Office of the Public Guardian and Trustee, online: .

[69] Substitute Decisions Act, ss. 27 and 62.

[70] Residential Tenancies Act, s. 140(1).

[71] Residential Tenancies Act, s. 140(2).

[72] Telephone conversation between Susan Benger, Freedom of Information Coordinator, Landlord and Tenant Board and Lisa Romano, Research Lawyer, ACE (30 June 2009).

[73] The ACTION Line is staffed by employees of the Ministry of Government Services: Letter from Lynne Gottschling, Access and Privacy Coordinator, Ministry of Government Services, to Lisa Romano, Research Lawyer, ACE (16 July 2009).

[74] Of the 2,895 calls to the ACTION Line, 1,152 calls resulted in an investigation by a compliance advisor where no complaint was filed, 1,578 calls resulted in an investigation where a complaint was verified and 165 calls had no investigation status identified: Letter from Mary Salvatore, Program Advisor, Access and Privacy Office, Ministry of Health and Long-Term Care, to Lisa Romano, Research Lawyer, ACE (17 July 2009).

[75] Nursing Homes Act, s. 2(2)9.

[76] Nursing Homes Act, Reg. 832, s. 121.

[77] Supra note 28 at 21.

[78] Chinta Puxley, “Majority of Ontario nursing homes fail some basic standards” Globe and Mail (2 July 2008), online: .
[79] Ontario, Ministry of Health and Long-Term Care, Performance Improvement and Compliance Branch, New Inspection Process – Fact Sheet (June 2009).

[80] Nursing Homes Act, s. 25(2) – (4).

[81] ACE is of the opinion that in these circumstances, the Trespass to Property Act, R.S.O. 1990, c. T.21 cannot be used to prohibit visitors. Section 2(1) of the Trespass to Property Act says:

Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

Residents of long-term care homes have the right to have a visitor without interference. Section 9 of the Resident’s Bill of Rights states: “Every resident has the right to communicate in confidence, to receive visitors of his or her choice and to consult in private with any person without interference.” Thus, section 2 of the Trespass to Property Act confers a right at law for the resident to have a visitor, meaning the Trespass to Property Act cannot be used to bar visitors from entering the premises.

[82] Email from Tracy Fairfield, Complaints Response and Information Service, Ontario Retirement Communities Association to Judith Wahl, Executive Director, ACE (2 July 2009).

[83] Nursing Homes Act, s. 2(2).

[84] Nursing Homes Act, s. 2(4).

[85] Long-Term Care Homes Act, s. 3(3).

[86] Long-Term Care Homes Act, s. 3(4).

[87] Nursing Homes Act, s. 29(1).

[88] Nursing Homes Act, s. 29.1.

[89] Long-Term Care Homes Act, s. 56(1).

[90] Nursing Homes Act, s. 30.

[91] The powers of Family Councils are set out in section 60 of the Long-Term Care Homes Act.

[92] Nursing Homes Act, s. 30(e).

[93] For a thorough explanation of the problem and ACE’s interpretation of the legal issues, please refer to Jane Meadus’ paper entitled Discharge to a Long-Term Care Home from Hospital at www.acelaw.ca.

[94] Concerned Friends of Ontario Citizens in Care Facilities, Home Page, online: .

[95] Concerned Friends of Ontario Citizens in Care Facilities, History, online: .

[96] Supra note 60 at 75.

[97] Ibid. at 83.

[98] While residents may leave the home as they wish, it is acceptable for the home to require them to sign in and out in order to know their whereabouts in the event of a fire or other emergency.

[99] Under the Long-Term Care Homes Act, incapable residents can apply to the Consent and Capacity Board to challenge the decision of their substitute decision-maker to admit or transfer them to a secure unit: ss. 32 and 45.

[100] Law Commission of Ontario, The Law As It Affects Older Adults – Consultation Paper: Shaping the Project (May 2008), online: http://www.lco-cdo.org/en/documents/OlderAdultsMay08/documents/ConsultationPaper-OlderAdultsFINAL.pdf> at 16.

[101] Health Care Consent Act, s. 4.

[102] (1993), 100 D.L.R. (4th) 609 at 618 (S.C.C.).

[103] Hospital Act, R.S.B.C. 1996, c. 200, ss. 1 and 2.

[104] Charmaine Spencer, An Introduction to Canadian Laws and Regulations to Protect Adults in Institutional Care Settings from Abuse and Neglect: British Columbia (2008) at 6, online: .

[105] Ibid.

[106] S.B.C. 2002, c. 75, Part 3.

[107] B.C. Reg. 536/80.

[108] Community Care and Assisted Living Act, s. 1.

[109] Adult Care Regulations, s. 2.

[110] British Columbia, Ministry of Health Services, Office of the Assisted Living Registrar, Services Offered in Assisted Living Residences, online: .

[111] British Columbia, Ministry of Health Services, Office of the Assisted Living Registrar, Exiting from an Assisted Living Residence: If a Resident’s Health Changes, online: .
[112] Canadian Centre for Elder Law, Discussion Paper on Assisted Living: Past, Present and Future Legal Trends in Canada (October 2008) at 17, online: .

[113] Ibid. at 23.

[114] Ibid. at 18.

[115] Charmaine Spencer, “A First Step in Consumer Protection for Seniors” in Seniors’ Housing Update (Gerontology Research Centre: Simon Fraser University, 2006), online, .

[116] Supra note 112 at 18.

[117] Community Care and Assisted Living Act, s. 1. Please refer to the preceding section of this paper regarding assisted living facilities for a list of the prescribed services.

[118] Residential Care Regulation, O.I.C. 225 (12 March 2009), s. 60, online: .

[119] British Columbia, Ministry of Healthy Living and Sport, The Community Care Licensing Branch, online: .

[120] Supra note 104 at 13.

[121] Community Care and Assisted Living Act, s. 25.

[122] Supra note 104 at 13.

[123] British Columbia, Ministry of Health Services, Office of the Assisted Living Registrar, Mandate of the Registrar, online: .

[124] Ibid.

[125] The Community Care and Assisted Living Board also hears and decides appeals from licensing and certification decisions about assisted living residences.

[126] Supra note 112 at 20-21.

[127] British Columbia, Ombudsman, What We Do, online: .

[128] Community Care and Assisted Living Act, s. 15.

[129] British Columbia, Ministry of Healthy Living and Sport, Community Care Facility Licensing Program, online: .

[130] Community Care and Assisted Living Act, s. 13.

[131] Supra note 112 at 24-25.

[132] Alberta, Seniors and Community Supports, Definitions – Affordable Supportive Living Initiative, online: .

[133] Charmaine Spencer, An Introduction to Canadian Laws and Regulations to Protect Adults in Institutional Care Settings from Abuse and Neglect: Alberta (2008) at 6, online: .

[134] Alberta, Seniors and Community Supports, Supportive Living Framework (March 2007) at 1, online: .

[135] Alberta, Seniors and Community Supports, Long-Term Care Accommodation Standards at 1, online: .

[136] Alberta, Health and Wellness, Continuing Care Strategy: Aging in the Right Place (December 2008) at 19, online: .

[137] Alberta, Health and Wellness, Continuing Care Health Service Standards (July 2008), online: .

[138] Effective May 15, 2008, the twelve former regional health authorities were replaced by the Alberta Health Services Board: Alberta Health Services, Our History, online: .

[139] R.S.A. 2000, c. S-10.

[140] Alberta, Seniors Community and Support, Supportive Living Accommodation Standards (March 2007), online: .

[141] Social Care Facilities Licensing Act, ss. 7-9 and 11.

[142] Supra note 133 at 12.

[143] Alberta, Seniors and Community Supports, Seniors Lodge Programs, online: .

[144] Supra note 134 at 10.

[145] Ibid. at 4.

[146] Hospitals Act, R.S.A. 2000, c. H-12, s. 1.

[147] Supra note 135 at 1.

[148] Ibid. at 1-2.

[149] Alberta, Seniors and Community Supports, Long-Term Care Accommodation Fees, online: .

[150] Protection for Persons in Care Act, R.S.A. 2000, c. P-29.

[151] Protection for Persons in Care Act, s. 2.

[152] Alberta, Seniors and Community Supports, General Information and Reporting Line, online: .

[153] Alberta, Seniors and Community Supports, Frequently Asked Questions About Abuse, online: .

[154] Protection for Persons in Care Act, s. 6(2).

[155] Protection for Persons in Care Act, s. 1(a).

[156] Supra note 133 at 12.

[157] Alberta, Legislative Review Committee, Report on the Review of the Protection for Persons in Care Act (March 2003), online: at 10.

[158] Health Facilities Review Committee Act, R.S.A. 2000, c. H-3, ss. 7 and 13.

[159] Supra note 133 at 11.

[160] Alberta, Health and Wellness, Health Facilities Review Committee, online: .

[161] Supra note 133 at 11.

[162] Health Facilities Review Committee Act, s. 10(2).

[163] Supra note 133 at 11.

[164] Supra note 160.

[165] Supra note 133 at 11.

[166] Ontario, Ombudsman Ontario, The Push for Mush (25 July 2008), online: .

[167] Supra note 112 at 63-64.

[168] The definition of “residential premises” specifically excludes residential care facilties and nursing homes but there is no reference to assisted living facilities: Residential Tenancies Act, R.S.N.S. 1989, c. 401, s. 2(h).

[169] Homes for Special Care Act, R.S.N.S. 1989, c. 203.

[170] Nova Scotia, Department of Health, Community Based Options (2005), online: .

[171] Nova Scotia, Department of Health, Continuing Care Strategy, Questions and Answers about Entering Long-Term Care (Spring 2009), online: .

[172] Homes for Special Care Act, s. 10(2) and 10(4).

[173] Supra note 112 at 64.

[174] Homes for Special Care Act Regulations, N.S. Reg. 127/77, s.17(3).

[175] Homes for Special Care Act, s. 10(3) – 10(4).

[176] Charmaine Spencer, An Introduction to Canadian Laws and Regulations to Protect Adults in Institutional Care Settings from Abuse and Neglect: Nova Scotia (2008) at 7, online: .

[177] Nova Scotia, Department of Health, Continuing Care Strategy, Paying for Long-Term Care, online: .

[178] Nova Scotia, Service for Persons with Disabilities, Report for Residential Services (June 2008) at 9 and 36, online: .

[179] Homes for Special Care Act Regulations, ss. 22-26.

[180] S.N.S. 2004, c. 33.

[181] R.S.N.S. 1989, c. 208.

[182] Ombudsman Act, R.S.N.S. 1989, c. 327, s. 11; Nova Scotia, Office of the Ombudsman, Seniors Services, online: .

[183] Ombudsman Act, s. 11; Nova Scotia, Office of the Ombudsman, Own Motion Complaints, online: .

[184] Supra note 182.

[185] Ibid.

[186] Ibid.

[187] Ibid.

[188] Health and Community Services Act, S.N.L. 1995, c. P-37.1.

[189] Personal Care Home Regulations, N.L.R. 15/01.

[190] Newfoundland and Labrador, Department of Health and Community Services, Long-Term Care Facilities in Newfoundland and Labrador: Operational Standards (November 2005), online: .

[191] Ibid. at 4.

[192] Ibid. at 79.

[193] Newfoundland and Labrador, Office of the Auditor General, 2005 Report on Reviews of Departments and Crown Agencies – Department of Health and Community Services, Chapter 2.12 (2005) at 285, online: .

[194] Ibid. at 287.

[195] S.N.L. 2000, c. R-14.1. s. 3(2)(e).

[196] Supra note 190 at 4.

[197] Regional Health Authorities Act, S.N.L. 2006, c. R-7.1, s. 16.

[198] Supra note 112 at 79.

[199] Accreditation Canada, About Us, online: .

[200] Accreditation Canada, Surveyors, online: .

[201] Accreditation Canada, Features, online: .

[202] Charmaine Spencer, An Introduction to Canadian Laws and Regulations to Protect Adults in Institutional Care Settings from Abuse and Neglect: Newfoundland and Labrador (2008) at 9-10, online: .

[203] Ibid. at 12.

[204] Supra note 112 at 80.

[205] S.N.L. 2001, c. 14.1, s. 15.

[206] Ibid.

[207] National Council for Palliative Care, Sheltered and Extra Care Housing: An Overview for Health and Social Care Professionals (March 2008) at 3-5, online: .

[208] Ibid. at 5.

[209] Ibid. at 6.

[210] Help the Aged, Sheltered Housing: Information Sheet (February 2009) at 5 and 7, online: .

[211] (U.K.) 1977, c. 43.

[212] (U.K.) 1988, c. 50.

[213] Welsh Assembly Government, Housing, Complaining About a Landlord, online: .

[214] Care Standards Act 2000 (U.K.), c. 14, s.3.

[215] S.I. 2002/324 (W.37).

[216] S.I. 2002/919 (W.107).

[217] Office of Fair Trading, Care Homes for Older People in the UK – A Market Study (2005) at 37, Chart 4.1, online: .

[218] Age Concern, Factsheet 20 – Finding Care Home Accommodation (October 2008) at 5, online: .

[219] “Basic elderly care ‘must be free’”, BBC News (30 March 2006), online: ; “Elderly people deserve a far better deal from the state,” The Independent (11 October 2007) online: .

[220] Welsh Assembly Government, Paying for Care in Wales – Creating a Fair and Sustainable System (2008), online: .

[221] The local authority will pay £153 per week for personal care, £69 per week for nursing care, or £222 per week to care home residents requiring both personal and nursing care: Scottish Government, Frequently Asked Questions about Free Personal and Nursing Care in Scotland, online: (last modified: 15 May 2009).

[222] Welsh Assembly Government, Minister of Health and Social Services, National Minimum Standards for Care Homes for Older People (March 2004), online: .

[223] Ibid. at 1.

[224] Community Care, National Minimum Standards (June 2008), online: ; Susan Kerrison & Allyson Pollock, “Caring for older people in the private sector in England” (2001) 323(7312) British Medical Journal 566 [Kerrison & Pollock].

[225] Welsh Assembly Government, Residential Property Tribunal, online: .

[226] Ibid.

[227] Care Homes (Wales) Regulations at Regulation 23.

[228] Supra note 222 at Standard 31.

[229] Ibid. at Standard 1.

[230] Welsh Assembly Government, Fulfilled Lives, Supportive Communities: A Summary (2007) at 3, online: .

[231] Welsh Assembly Government, Care and Social Services Inspectorate for Wales, Complaints Procedure and Guidance for Handling Complaints in Regulated Services (September 2008) at 8-10, online: .

[232] Ibid. at 14-15.

[233] Ibid. at 15-17.

[234] Ibid. at 17.

[235] Wales, Healthcare Inspectorate Wales, Welcome to Healthcare Inspectorate Wales, online, http://www.hiw.org.uk/home.cfm?orgid=477> (last modified: 17 July 2009).

[236] Ibid. and Wales, Healthcare Inspectorate Wales, Our Rule, online, (last modified: 24 May 2007).

[237] (U.K.), 2006, c. 30.

[238] Gareth Griffith, NSW Parliamentary Library Research Service, A Commissioner for Older People in NSW? (2008) at 9, online: .

[239] Welsh Assembly Government, Frequently Asked Questions, online: .

[240] Ibid.

[241] Commissioner for Older People in Wales Regulations 2007, S.I. 2007/398 (W.44) at Regulation 9.

[242] Commissioner for Older People (Wales) Act 2006, s. 10.

[243] Supra note 239.

[244] Public Service Ombudsman for Wales, Bodies in the Ombudsman’s Jurisdiction, online: .

[245] Law Institute Victoria, What is a Retirement Village? online: (last modified: 16 January 2009).

[246] The Aged Care Rights Service (TARS), Retirement Villages, online: (last modified: 23 May 2007).

[247] Parliament of New South Wales, Retirement Villages Amendment Bill 2008, online: (last modified: 6 April 2009).

[248] Australia, Department of Health and Ageing, Types of Care, online: (last modified: 2 August 2006).

[249] Aged Care Act 1997 (Cth).

[250] Sue Field, “Dangers in Aged Care: The Tension Between the Rights of Care Recipients and Those of the Aged Care Providers” (2008) 1 Canadian Journal of Elder Law 5 at 8.

[251] Ibid. at 10.

[252] User Rights Principles 1997 made under subsection 96-1(1) of the Aged Care Act 1997.

[253] User Rights Principles at Schedule 1, sections 23.14 and 23.16.

[254] Australia, Department of Health and Ageing, Ageing and Aged Care in Australia, (July 2008) at 31, online: .

[255] John Braithwaite, “Regulating nursing homes: The challenge of regulating care for older people in Australia” (2001) 323 (7310) British Medical Journal 443 at 444-445; Kerrison & Pollock, supra note 224 at 566.

[256] Ibid.

[257] Office of Fair Trading, Retirement Village Living (November 2007) at 34, online: .

[258] Ibid. at 35.

[259] Health Care Complaints Commission, About the Health Care Complaints Commission, online: .

[260] Aged Care Act 1997, s. 56.4.

[261] Australia, Department of Health and Ageing, Aged Care Complaints Investigation Scheme, online: (last modified: 13 January 2009).

[262] Agedcarecrisis.com, How Effective is the Complaints Process? (28 April 2008), online: .

[263] Australian Ageing Agenda, Complaints about the CIS (2 June 2009), online: .

[264] Wendy Carlisle, “Aged Care System at the End of the Line” ABC News (1 June 2009), online: .

[265] Australia, Aged Care Commissioner, About Us – Introduction, online, .

[266] Supra note 263.

[267] Australia, Department of Health and Ageing, The National Aged Care Advocacy Program, online: (last modified: 3 December 2007).

[268] Australia, Department of Health and Aging, National Aged Care Advocacy Program Service Charter, online: (last modified: 21 July 2008).

[269] Australia, Department of Health and Aging, Evaluation of the impact of accreditation on the delivery of quality of care and quality of life to residents in Australian Government subsidised residential aged care homes (October 2007) at 18, online:

[270] Australia, Department of Health and Ageing, Report on the Operation of the Aged Care Act 1997 (2008) at 61, online: .

[271] Ibid.

[272] Australia, Department of Health and Aging, Community Visitors – Friends for Older People: Information for Visitors, online: (last modified: 18 December 2008).

[273] Australia, Department of Health and Aging, Community Visitors Scheme, online: (last modified: 18 December 2008).

[274] National Senior Citizens Law Center, Critical Issues in Assisted Living: Who’s In, Who’s Out and Who’s Providing the Care by Eric Carlson (Washington, D.C.: National Senior Citizens Law Center, May 2005) at 13.

[275] Ibid. at 8.

[276] Ibid. at 12.

[277] Kerry Hannon, “Eric Carlson: On Elder Care – and Elder Law,” U.S. News and World Report (11 March 2009), online: .

[278] Supra note 274 at 10.

[279] Eric Carlson, Long-Term Care Advocacy, looseleaf (N.p.: Matthew Bender & Company; LexisNexis, September 2008) at 5-46 and 5-49.

[280] Ibid. at 1-3.

[281] 42 U.S.C., s. 483.25.

[282] Medicare is a federal health care program for older adults and disabled individuals which covers a maximum of 100 days of skilled nursing home care following a hospital stay. Medicaid is a joint federal-state health care financing program for certain groups of low income individuals which pays for the nursing home care of individuals who can no longer live at home.

[283] Kevin Dreher, “Enforcement of Standards of Care in the Long-Term Care Industry: How Far Have We Come and Where Do We Go From Here?” (2002) 10 Elder Law Journal 119 at 124.

[284] Supra note 279 at 2-96 – 2-99.

[285] Ibid. at 2-100.

[286] Ibid. at 2-98.

[287] Ibid. at 2-102.

[288] United States Department of Health and Human Services, Centers for Medicare and Medicaid, Five Star Quality Rating System, online: (last modified: 24 June 2009).

[289] United States Department of Health and Human Services, Centers for Medicare and Medicaid, Improving Nursing Home Care for Consumers: Five-Star Quality System, online: (last modified: 24 June 2009).

[290] National Senior Citizens Law Centre, New CMS nursing home ratings do not tell the whole story (18 December 2008), online: .

[291] National Consumer Voice for Quality Long-Term Care, Grassley-Kohl Transparency and Improvement Act Will Provide Accessible Information about Nursing Home Ownership, Quality

(19 March 2009), online: .

[292] 42 U.S.C., s. 483.25(l)(2).

[293] While data from 1999-2000 indicated that 15% of nursing home residents were receiving antipsychotic medications, data from 2004 shows the percentage increasing to nearly 25%: Pravin Kamble et al., “Antipsychotic Drug Use Among Elderly Nursing Home Residents in the United States” (2008) 6(4) 187 at 188 and 192.

[294] 42 U.S.C., s. 3027(a)(9).

[295] Supra note 279 at 2-117.

[296] Naomi Karp & Erica Wood, Keep Talking, Keep Listening: Mediating Nursing Home Care Conflicts (Washington, D.C.: American Bar Association, 2007) at 27.

[297] Library of Congress, Congressional Research Service, CRS Report for Congress, Older Americans Act: Long-Term Care Ombudsman Program (17 April 2008) by Kirsten Colello at 2, online: .

[298] Ibid. at 4.

[299] Ibid. at 1, 5 and 6.

[300] This number includes all 50 states plus Puerto Rico, Guam and the District of Columbia.

[301] National Long Term Care Ombudsman Resource Center, About the National Long Term Care Ombudsman Resource Center, online: .

[302] Telephone conversation between Lori Smetanka, Director, National Long-Term Care Ombudsman Resource Center and Lisa Romano, Research Lawyer, ACE (10 March 2009); Email from Sara Hunt, Consultant, National Long-Term Care Ombudsman Resource Center, to Lisa Romano, Research Lawyer, ACE (23 March 2009).

[303] Wisconsin, Board on Aging and Long-Term Care, Biennial Report of the Wisconsin Board on Aging and Long-Term Care, 2006-2007 (2008) at 5, online: .

[304] Wisconsin Board on Aging and Long Term Care, Ombudsman Program, online: .

[305] American Association of Retired People, D.C. Long Term Care Ombudsman (June 2003), online: .

[306] Office of the District of Columbia Long-Term Care Ombudsman, Annual Report 2008 (2008) at 3, online: .

[307] Supra note 302.

[308] Supra note 279 at 2-118 – 2-118.1.

[309] Supra note 296 at 81.

[310] 42 U.S.C. 3027, s. 307(11).

[311] Supra note 279 at 10-7.

[312] National Consumer Law Center, Unfair and Deceptive Acts and Practices, s 1.1 (4th ed. 1997).

[313] Podolsky v. First Healthcare Corp., 58 Cal. Rptr. 2d 89 (Cal. Ct. App. 1996).

[314] Mulligan v. Beverly Enterprises-Texas Inc., 954 S.W.2d 881 (Tex, App. 1997).

[315] Brogdon v. National Healthcare Corp., 103 F. Supp. 432 (E.D. La. 1996).

[316] Supra note 279 at 10-67.

[317] Long v. HCA Health Servs. of Tennessee, Inc., 2002 Tennn. App. LEXIS 211 (Tenn. Ct. App. 2002).

[318] Healthcare Ctrs. of Texas, Inc. v. Rigby, 97 S.W.3d 663 9Ky. Ct. App. 2004).

[319] Lemoine v. Insurance Co. of North America, 499 So. 2d 1004 (La. Ct. App. 1986).

[320] Redfield v. Beverly Health and Rehab. Servs., Inc., 42 S.W.3d 703 (Mo. Ct. App. 2001).

[321] Casa v. Paradez, S.W.3d, 2007 Tex, App. LEXIS 7218.

[322] 353 Ark. 29, 111 S.W.3d 346 (2003).

[323] N.Y. Public Health Law, s. 2801-d.

[324] Fla. Stat. Ann., s. 400.023(1) and s. 400.29.

[325] N.J.S.A., ss. 30:13-8(b).

[326] ACE is referring to those retirement homes providing the same or similar care services as in a long-term care home or those receiving government funding for care services.

[327] Additional information about this program can be found at Stetson Law School’s Center for Excellence in Elder Law’s website: .

[328] Supra note 28 at 16.

[329] Supra note 2 at 26.

[330] Ibid.

[331] Ibid.

[332] Supra note 217 at 131.

[333] Oxford English Dictionary, Advocacy (Oxford University Press), online: OED Online.

[334] Sean O’Sullivan, Report of the Review of Advocacy for Vulnerable Adults, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987) at vi.

[335] Ibid. at 5.

[336] Ernie Lightman & Uri Aviram, “Too Much, Too Late: The Advocacy Act in Ontario” (2000) 22 Law and Policy 25 at 30 [Lightman & Aviram]; Advocacy Act, 1992, S.O. 1992, c. 26, s. 2, as repealed by the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, c. 2, s. 1.

[337] Lightman & Aviram, ibid. at 31.

[338] Ibid. at 38-39.

[339] Ibid. at 27.

[340] Ibid. at 33.

[341] Ibid. at 40.

[342] The Health Care Commission’s jurisdiction over retirement homes is contingent on the regulation of retirement homes. Please refer to the section about retirement homes on pages 102-106 for more information. It may not be appropriate to have an advocate in all retirement homes as many residents are capable and might be offended by the assumption that they require assistance.

[343] Nursing Homes Act, Reg. 832, s. 130(1)(a).

[344] Provincial Advocate for Children and Youth Act, 2007, S.O. 2007, c. 9, s. 1.

[345] Provincial Advocate for Children and Youth Act, s. 15.

[346] Provincial Advocate for Children and Youth Act, s. 16.

[347] Provincial Advocate for Children and Youth Act, s. 21.

[348] Advocacy Act, s. 1(b).

[349] Forum of Canadian Ombudsman, What is an ‘Ombudsman’?, online: .

[350] Ibid.

[351] Mary Marshall, “Seniors Need Resources to Pursue Complaints” (2005) 26 Health Law in Canada 1 at 4.

[352] Ibid.

[353] Andre Marin, “Vital Watchdog vs. Paper Tiger: What Kind of Ombudsman do You Want to Be?” (Closing remarks to the Association of Canadian and University Ombudsmans at Halifax, Nova Scotia, 29 May 2008), online: .

[354] Ontario, Ombudsman Ontario, Annual Report 2008-2009 (June 2009) at 15, online: .

[355] Ombudsman Act, R.S.B.C. 1996, c. 340, Schedule of Authorities at Number 28.

[356] Bill 89, Ombudsman Amendment Act (Hospitals and Long-Term Care Facilities), 2008, 1st Sess., 39th Leg., Ontario, 2008, online: .

[357] Bill 102, Seniors’ Ombudsman Act, 2008, 1st Sess., 39th Leg., Ontario, 2008, online: .

[358] Ontario, Ombudsman Ontario, Making a Complaint, online: .

[359] Gunningham & Sinclair, supra note 31 at 50.

[360] Ibid. at 52.

[361] Ibid. at 53.

[362] Ibid. at 55.

[363] Ontario, Ontario Seniors’ Secretariat, Consultation Backgrounder for Ontario’s Consultation on Regulating the Retirement Home Industry, online: .

[364] Ontario, Ontario Seniors’ Secretariat, Retirement Homes Consultations, online: (last modified: 30 July 2007).

[365] Ontario, Ontario Seniors’ Secretariat, Regulating Care in Ontario’s Retirement Home Industry: The Findings from 13 Consultations (2007), online: ; Ontario, Ontario Seniors’ Secretariat, Regulating Care in Ontario’s Retirement Home Industry: The Findings from Written Submissions to the Ontario Seniors’ Secretariat (2007) at 10, online .

[366] R.S.O. 1990, c. H.6.

[367] Accessibility for Ontarians with Disabilities Act, 2005. S.O. 2005, c. 11.

[368] Supra note 193.

[369] (W.A.), s. 11.

[370] R.S.A. 2000, c. S-6, s. 2(2).

[371] Government of Canada, National Seniors Council, About Us, online: (last modified: 3 February 2009).

[372] Office of Missouri Governor, Governor’s Advisory Council on Aging, online: .

[373] Accessibility for Ontarians with Disabilities Act, 2005. s. 31.

[374] Supra note 2 at 4.

[375] Pursuant to the Mental Health Act and R.R.O. 1990, Reg. 741, the following eight situations require mandatory rights advice: (1) a physician’s decision that the patient’s status in a psychiatric facility must change to involuntary; (2) a physician’s decision that the patient’s involuntary status must continue; (3) a physician’s decision that the patient is incapable to manage property; (4) a physician’s decision that the patient’s incapacity to manage property must continue; (5) a physician’s decision that the patient is incapable to consent to treatment for a mental disorder; (6) a determination that the patient is incapable of consenting to the collection, use or disclosure of personal health information; (7) when a twelve to fifteen year old is admitted to a psychiatric facility as an informal patient, and every three months thereafter; and (8) before issuing or renewing a community treatment order, a physician must be satisfied that the person who will be subject to the order (and their substitute decision-maker, if any) has consulted with a rights adviser and have been advised of their legal rights.

[376] Mental Health Act, Reg. 741, s. 15(1)(a). A copy of the Form 33, Notice to Patient under Subsection 59(1) of the Act and under Clauses 15(1)(a) and 15.1(a) of Regulation 741, can be found at http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetAttachDocs/014-1088-41~3/$File/1088-41_.pdf.

[377] Supra note 48 at 189.

[378] Both section 23 of the Nursing Homes Act and section 141 of the Long-Term Care Homes Act merely say that the Minister “may appoint inspectors.”

[379] To view reports in these two countries, please refer to the respective websites of the Care and Social Services Inspectorate of Wales and the Aged Care Standards and Accreditation Agency at .

[380] Long-Term Care Homes Act, s. 182.

[381] Neeta Lal, “India’s senior citizens finally get a hearing” Infochange (July 2007) online: .

[382] China.org.cn, Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly, 1996, online: .

[383] Supra note 296 at 36.

[384] Ibid. at 40.

[385] Canadian Centre for Elder Law, Backgrounder: Elder and Guardianship Mediation (24 February 2009) at 2, online: .

[386] Supra note 296 at 31.

[387] Supra note 385 at 1.

 

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