This Chapter will illustrate the application of the Framework through consideration of a current issue in the law as it affects older adults: the law regarding access to home care supports.

The intent of this illustration is not to provide a comprehensive description of this area of the law or to propose specific reform initiatives. Rather, the aim is to reflect on this area of law in light of the anti-ageist principles and considerations that have been identified in this Interim Report, and where possible, to discover some concerns and general directions for reform that arise from the application of these principles and considerations, with the intent to provide some foundation for further research and reform initiatives.  

The law with respect to home care also raises concerns for younger persons with disabilities, and could be considered through the lens of the LCO’s sister project on the law as it affects persons with disabilities, but this Chapter will focus on the experiences of older persons. 

This area was chosen because although it is vital to the well-being of many older adults and is a recurrent topic of public discussion and policy concern, the law in this area is under-examined.  It is an area of the law that connects in a fundamental way to many of the anti-ageist principles that have been identified. It also illustrates a number of the key themes in this area of the law, including the “implementation gap”.

 

A.  Background

As is discussed in Chapter II of this Interim Report, most older adults express a strong preference to “age in place” – to remain in their homes and communities for as long as possible. Aging in place has also been identified as a policy priority for governments, partly because it provides better outcomes for older adults, and partly because it can help to support the overall sustainability of the health care system.[557] 

Because overall health may decline with age and older adults may experience various types of ability limitations, older adults may need supports of various kinds in order to age in place. This may include supports with domestic tasks, such as shopping, errand-running or cleaning, or with personal care tasks such as bathing. It may also include health-related supports, such as occupational therapy.  Most frequently such supports are provided by family and friends, whether it be spouses, children, neighbours or others. Some older adults, however, do not have family or friends who are located nearby, or have the health or ability to provide these supports. In other cases, the supports needed by the older adult may be beyond what can be provided informally. In such cases, formal home care supports are necessary.  

Home care services are, of course, closely connected to hospital care and long-term care services. Strong home care services can reduce the pressures on both hospital services and long-term care, by allowing older adults and others who use these services to return to, and/or remain in their homes with appropriate supports, rather than by accessing the higher intensity services provided through hospitals and long-term care. Conversely, resource strains in long-term care or hospital care can create challenges for the home care system as high-need individuals are unable to obtain the intensive supports they require, and are reliant on home care supports while waiting for higher levels of care. 

Policies and programs regarding formal home care supports are also closely linked to those related to informal care. Most elder care is provided in the community by family and friends. As demographic patterns change, older adults may have less access to informal supports, whether because families are spread out across the country (or around the world), because families are becoming smaller and more complex, because changes in labour force patterns have created new time pressures, or because informal caregivers are themselves aging and consequently less able to provide care. At the same time, lack of formal home care supports may create intense pressure on informal care providers. Where insufficient supports are provided, informal networks may collapse under the strain, resulting in institutionalization for the older person.[558] As the Advocacy Centre for the Elderly (ACE) has noted, 

Elder care is largely provided in the community by family members. Not only does it facilitate “aging in place” but it saves public resources. Regrettably, the services in place to support family caregivers are extremely limited resulting in an “all or nothing” system where families feel they have no choice but to put their loved one into a longterm care facility.[559]

Home care supports are of course valuable to others besides older adults. Persons who have experienced acute illness may need home care supports to assist their recovery upon discharge from hospital. Persons with disabilities who are not yet “older” may benefit from a range of personal, domestic and professional services provided in the home. 

Therefore, governments, including the government of Ontario, have invested in various types of home care supports for older adults. Ontario’s Auditor General has noted,

The Ministry has recognized the dual benefit of enhancing home care services. Having people receive care in their homes whenever possible not only means better quality of life for the patient, it is also far more cost effective than housing a patient in a hospital, long-term-care facility, or other institutional setting to receive care. One CCAC we spoke to informed us that, for instance, personal support services can enable individuals who have moderate risks/needs to continue living independently in their homes. Not having these services could lead to deterioration in a client’s condition that could result in hospitalization or institutionalization.[560] 

In Ontario, home care supports are regulated by the Home Care and Community Services Act, 1994, (HCCSA)[561] and provided through a network of Community Care Access Centres (CCACs) situated across the province.  

As changing demographics and limited resources place increasing pressures on home care services, significant concerns about access to home care have begun to surface. Lack of access to adequate home care may leave older adults in unsafe, undignified conditions, and place unbearable strains upon family care providers, as well as result in avoidable admissions to hospital or long-term care. Commentators have raised concerns about patchwork services, lack of transparency regarding the services provided, confusing eligibility criteria, and inadequate complaints and enforcement mechanisms. While there has been some significant attention to home care in recent years, very little of that attention has focused on the legal aspects of the issues.  This section examines Ontario law regarding access to home care supports through the lens of the LCO’s draft Framework.

 

B.  Ontario’s Legal Framework for Home Care
 

1.    Background

The stated purposes of the HCCSA include ensuring that “a wide range of community services is available to people in their own homes and in other community settings so that alternatives to institutional care exist”, providing “support and relief to relatives, friends, neighbours and others who provide care for a person at home”, promoting “equitable access to community services through the application of consistent eligibility criteria  and uniform rules and procedures”, and integrating community services with other types of services, including those provided by hospitals and long-term care homes.[562]

The HCCSA regulates the provision of:[563]

  1. Community support services, such as meals, transportation, caregiver support, home maintenance and recreational services;
  2. Homemaking services, such as housecleaning, laundry, shopping, banking, meal preparation and childcare;
  3. Personal support services, including assistance with or training for personal hygiene activities or routine personal activities of living; and
  4. Professional services, including nursing, occupational therapy, physiotherapy, social work, dietetics and similar services. 

The HCCSA includes a Bill of Rights for those receiving home care services. This includes rights to:[564]

  • be dealt with in a courteous and respectful manner, and to be free of any type of abuse;
  • be dealt with in a way that respects autonomy, dignity and privacy;
  • be dealt with in a way that respects individuality, and is sensitive to needs related to ethnicity, language, culture, spirituality or family;
  • receive information about the community services he or she is receiving; the laws, rules and policies affecting the operation of the service provider; and the procedures for initiating a complaint;
  • participate in the assessment of his or her needs and in the development of a plan of service;
  • give or refuse consent to the provision of any service;
  • raise concerns or recommend changes in connection with the services provided or policies and decisions that affect his or her services; and
  • have records kept confidential.

 

2.    Service Delivery Structure

The HCCSA gives the Minister of Health and Long-Term Care (MOHLTC) considerable latitude in terms of the provision of services: services may be provided directly by the government; the government may pay others to provide community services, whether through grants and contributions, or financial assistance for operating expenditures or capital expenditures; or the government may make agreements with others for the provision of services.[565] The Minister has the power to approve agencies to provide services and to approve premises for the provision of services, and may impose terms and conditions for approval.[566] 

The Community Care Access Centres (CCACs), which are approved agencies under section 5 of the HCCSA, were created in 1996, replacing regional home care and placement services that had been criticized as fragmented and inequitable.[567] Originally 42 in number, in 2006 they were consolidated into 14 organizations in order to align them with the Local Health Integration Networks (LHINs).[568] Each CCAC is now accountable to one of the LHINs and every LHIN is accountable to the Ministry.[569]  The CCACs assess potential clients for service eligibility, approve clients for home care and determine the allocation of available funds.[570] The CCACs do not themselves provide services. In theory, non-profit and for-profit organizations may compete to provide services by bidding for contracts through a Request for Proposals. In practice, the competitive process has been suspended on a number of occasions.[571] 

 

3.    Eligibility Criteria for Home Care Services

Some requirements for eligibility for services are set out in Regulation 386/99. The requirements do not set out who is eligible for services, but only who is not eligible. For example, homemaking services may not be provided unless the individual in question:

  • is insured under the Health Insurance Act,
  • is eligible for both personal support services and homemaking services,
  • either receives personal support and homemaking services from an informal caregiver who requires assistance in order to continue providing all of the required care or requires constant supervision as a result of a cognitive impairment or acq