*UPDATE: On February 25, 2021, the Ministry of Health issued a revised policy (the “February 25 Guidelines”) regarding visitors in long-term care and seniors’ assisted living (updating their existing policy document released on January 7, 2021). The February 25 Guidelines bring welcome changes: (i) emphasizing the importance of consistent and easy access to information; and (ii) setting timelines for the decision-making and appeal process. Going forward, it is critical that the February 25 Guidelines are adhered to by all stakeholders, with the primary focus being the well-being of residents in care. A copy of the February 25 Guidelines is available here: http://www.bccdc.ca/Health-Info-Site/Documents/Visitors_Long-Term_Care_Seniors_Assisted_Living.pdf.
NST partner Karen Carteri and associate Caitlin Ohama-Darcus are pro bono counsel for a group of clients concerned with the COVID-19 visitor restrictions in place in licensed long-term care (“LTC”) and assisted living facilities throughout British Columbia.
On December 4, 2020, on behalf of the firm’s client group, NST initiated communications with the Provincial Health Officer and the Minister of Health about the need to rectify serious harms from isolation and confinement that were being suffered by too many vulnerable residents of LTC and assisted living as a result of pandemic visitation restrictions — harms which arguably constitute Charter rights violations. A link to the December 4, 2020 letter is available here.
On December 29, 2020, on behalf of the client group, NST also initiated a complaint to the Office of Ombudsperson about systemic unfairness arising from the visitor restrictions then in place. Since November, citizens in British Columbia have been confined to socializing with their households, but have been able to access that interaction as much as they need or want. Vulnerable seniors in LTC and assisted living have been deprived of that level of social contact with loved ones since the outset of the pandemic.
On January 7, 2020, in response to calls for change — including those we issued in December on behalf of our clients — the Ministry of Health, through the BCCDC, issued a new guidance document entitled Overview of Visitors in Long-Term Care and Seniors’ Assisted Living (the “New Guidelines”). Those guidelines can be accessed through the BCCDC website here: http://www.bccdc.ca/Health-Info-Site/Documents/Visitors_Long-Term_Care_Seniors_Assisted_Living.pdf.
While there have been some improvements to visitation under the New Guidelines, many people are still struggling through the processes of trying to get visitation as permitted under the New Guidelines, resulting in further loss of precious time and precious quality of life for those in care. The vaccines for COVID-19 are promising, but every day is precious to vulnerable seniors in care who are approaching the end of their lives.
We have become increasingly aware that what many individuals need is clear access to information on how they can: (i) apply for essential or social visitor status for their loved ones, and (ii) appeal decisions concerning visitor status that have so far been denied. This blog post sets out our take on the basics.
New Guidelines for Essential and Social Visitors as of January 7, 2021
Based on our review of the New Guidelines, there are at least six key changes:
- Residents must have a say. Decisions concerning essential visitor status are to be made in partnership with the resident or their substitute decision maker.
- Who may qualify as an essential visitor. Essential visits now have broader definition as set out in Appendix A of the New Guidelines, including support that is part of the resident’s record and care planning, personal care and mental well-being. Mental well-being can include acute deterioration, but that language clearly does not require that mental well-being be in a state of acute deterioration to warrant an essential visitor — it only includes such situations.
- Each resident can have at least one essential and one social visitor. There can be two designated visitors per resident, one essential and one social (with special allowances for more in special circumstances).
- Visiting safely in resident rooms. There is more emphasis on visitation in resident rooms, especially when residents have a single occupant room. Previously, many visits were previously only allowed in common areas. The new emphasis on visitation in resident rooms is seen not only in Appendix A to the New Guidelines but also in the removal of reference to “visiting groups” in the Practice Requirements for Social Visits.
- Meaningful visitation. Visits need to be meaningful, and the duration of visits is to be determined between the visitor, the resident and the facility to ensure that meaningful visitation is achieved. The New Guidelines state expressly that it is expected that regular visits will be accommodated by operators. Although those guidance points are contained in the social visits section of Appendix A, they arguably inform essential visits as well, especially the spirit of accommodation, meaningfulness and duration expressed therein.
- Impartial and prompt decision-making. Decisions about essential visits and social visits are to be made impartially without delay and where denied, reasons must be provided.
The New Guidelines also introduce a new “appeal and review” process, described at page 10 of the New Guidelines. We encourage all individuals who are seeking essential and/or social visitor status for their loved one to apply (or, if an application was submitted prior to January 7, 2021, re-apply) to their loved one’s facility – more information about the 4 steps of the process are set out below.
Order of the Provincial Health Officer from February 5, 2021
On February 5, 2021, British Columbia’s Provincial Health Officer issued a first order (the “PHO Order”) addressing the visitor restrictions for LTC and assisted living facilities throughout the province. Previously, the visitation guidelines existed only pursuant to a policy communique issued by the PHO and Minister of Health, in the absence of a province-wide order.
The PHO Order does not change the substance of: (i) the January 7, 2021 guidelines; or (ii) the appeal process outlined above. However, the PHO Order clarifies that:
- All facilities/licensees must implement and comply with the existing visitor guidance, including the new appeal and review process;
- Every resident who has an essential visitor may also have a social visitor; and
- Facilities must provide requested information/records to the Provincial Health Officer or a medical health officer, if request for that information or records is made.
The PHO Order also allows regional medical health officers to make additional orders imposing more restrictive limitations or restrictions on visitation in their specific health region. There are five health regions in British Columbia: Fraser Health, Interior Health, Island Health, Northern Health and Vancouver Coastal Health.
What to Do if Your Request for Essential or Social Visitor Status Has Been Denied
As noted above, the New Guidelines introduce a new “appeal and review” process for decisions related to visitor status.
- Step 1 is a decision made at the facility level, either to approve or deny an individual’s request for visitor status. If a request is denied, reasons must be provided.
- Step 2 involves a request to the “designated site administrator” for a facility, who is responsible for assessing whether the initial determination was appropriate. If the Step 1 decision is upheld and visitor status is denied, reasons must be provided with information on how to apply for a further review.
- Step 3 involves a further escalation to the regional health authority’s Patient Care Quality Office for further reconsideration (there are five regional health authorities in British Columbia). A link to a document setting out the contact information for each PCQO office in BC is available here.
- Step 4 involves escalation to the Provincial Health Officer for further reconsideration. This is intended to address any unresolved complaints or concerns specific to visitor restrictions in long-term care and assisted living in British Columbia.
Aside from the 4-step appeal and review process outlined in the New Guidelines, individuals with unresolved concerns about COVID-19 visitor restrictions in LTC or assisted living facilities in British Columbia can file an individual complaint with the Office of the Ombudsperson. The Office of the Ombudsperson takes complaints and enquiries from individual citizens who feel they have been treated unfairly by a public body (including a health authority, a Patient Care Quality Office, the Ministry of Health, etc.). The Office of the Ombudsperson accepts complaints by phone (1-800-567-3247), fax, email (see link available through www.bcombudsperson.ca) and mail.
Note: if a complaint is made to the Office of the Ombudsperson about LTC and assisted living visits, the person submitting that complaint should clearly indicate this in their submission, and if they believe their complaint is urgent, should identify this as well.
More information about submitting a complaint to the Office of the Ombudsperson if available here: https://bcombudsperson.ca/complaints/.
Confronting Ongoing Issues
On February 8, 2021, Ombudsperson Jay Chalke Q.C. issued a media release calling on the province to do more to address the issue of visits to long-term care facilities in British Columbia. The Ombudsperson said this about the current state of affairs:
“I welcome the provincial health order issued last Friday that legally requires all long-term care facilities – public and private – to apply the visits policy issued last month by the Ministry of Health. This Provincial Health Officer’s order, which requires a province-wide consistent approach, is an important and helpful step,” said Chalke. “However, as a result of complaints to my office that we investigated, I continue to have concerns about the associated ministry policy and how it is being implemented. The Provincial Health Officer’s order expressly anticipates that amendments to the Ministry of Health policy may be required and I am calling on the ministry to make needed improvements.”
In particular, Ombudsperson Chalke has called for three changes to the existing visitor policy: (i) mandatory timelines for visit-related decisions and the appeal process; (ii) a specific requirement for written reasons where a person’s application for visitor status is denied or restricted by a facility; and (iii) consistent and easy access to public information about the current public health order and visitor policy.
We echo the concerns expressed by Ombudsperson Chalke. It is imperative that the government address the key gaps and omissions that continue in the existing policy and process.
Where to Find the Most Current Information
The information in this article is current as of February 23, 2021.
Everyone who has an interest in this issue should be regularly checking the following websites for updates concerning long-term care and assisted living in British Columbia:
- For the most current orders of the Provincial Health Officer: https://www2.gov.bc.ca/gov/content/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/current-health-topics/covid-19-novel-coronavirus;
- For the most current guidelines of the Ministry of Health: https://www2.gov.bc.ca/gov/content/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/current-health-topics/covid-19-novel-coronavirus#guidance.
- For more information about your local health authority and your local health authority’s website: https://www2.gov.bc.ca/gov/content/health/about-bc-s-health-care-system/partners/health-authorities/regional-health-authorities.