The type of congregate setting where an older adult resides can make an immense difference in one’s ability to access justice. There are few oversights in the area of hospitals or retirement homes, thus making accessing justice extremely difficult. While there are numerous legal protections in place for residents of long-term care homes, there are limited mechanisms available to effectively enforce these rights. Legislation containing residents’ rights applicable to all three settings, such as the Health Care Consent Act, is often ignored, no matter where the person resides due to the recurrent theme of “good law, bad practice.”
In some instances, such as the retirement home sector, legislation will be required in order to regulate the industry and to provide residents with the tools to ensure they are receiving appropriate and adequate care. In other sectors, such as long-term care homes, both the current and pending legislation, subject to minor modifications, are satisfactory; however, it is the implementation and enforcement of this legislation which is paramount to ensuring that residents are able to access justice.
The focus groups conducted by ACE, as well our review of other jurisdictions, indicate that education about the applicable law is key to ensuring access to justice for adults residing in congregate settings. The enactment of legislation alone is insufficient: residents must be provided with the tools and assistance necessary to make it work. To this end, education of residents, families and service providers is the first step.
However, even if education is provided, residents in congregate settings require assistance to implement their rights. We believe that the creation of an independent Health Care Commission, whose purpose is the provision of both individual and systemic advocacy, is essential. Advocates would provide residents with the knowledge and support necessary to take their concerns to the appropriate entities. Further, the systemic advocacy function of the Health Care Commission would be a positive force in the health care system to ensure that the rights of all, even those who cannot speak for themselves, are heard.
We have also recommended the expansion of the jurisdiction of the provincial Ombudsman into the health care sector. With many thousands of residents living in congregate care, costing billions of public dollars, such oversight is important to ensure that the needs of the users of the sector are met in an appropriate fashion.
As indicated above, a significant proposal we are putting forward is the regulation of retirement homes. This sector continues to grow and to provide more care to a larger segment of our population who have frailer health. Legislation is required to ensure that quality care is provided to residents and their rights are respected.
The goals of the recommendations contained in this paper are to ensure that residents in congregate care settings are able to access justice in a meaningful way. The present system, while in many senses providing the framework for justice, does not go far enough to ensure that justice is actually done.
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