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Editor-in-Chief: Gilbert S. Sharpe, B.A., LL.B., LL.M.
Co-Editor-in-Chief: David N. Weisstub, M.A., J.D.

August 2005
VOLUME 26, NUMBER 1
Pages 1-12

· SENIORS NEED RESOURCES TO PURSUE COMPLAINTS ·

Mary A. Marshall
Mary A. Marshall Professional Corporation, Edmonton
INTRODUCTION
· Albertans, through their taxes, pay a significant

amount for seniors and care; and
In May 2005, the "Report of the Auditor Gen-
· service delivery systems are complex.
eral on Seniors Care and Programs" ("the Report")

was released.1 The Auditor General examined ser-
The Department of Health and Wellness has set
vices provided to seniors in long-term care facili-
Basic Service Standards (Basic Standards) for ser-
ties, the Seniors Lodge Program and the Alberta
vices provided in long-term care facilities. How-
Seniors Benefit Program.2 In total, the systems of
ever, the Department does not require the
nine Regional Health Authorities (RHAs), 25
Regional Health Authorities to inspect facilities
long-term care facilities, and 20 lodge operators
and report to the Department on compliance with
were examined.
Basic Standards. Most RHAs do not have any
The Auditor General gave the following reasons
processes in place to monitor whether their facili-
for conducting the audit:
ties comply with all the Basic Standards. The Re-

port concludes that only 69 per cent of the Basic
· seniors represent a vulnerable segment of our
Standards related to care were met by the long-
population since many of them need to rely on
term care facilities. The Auditor General was most
others for their financial and physical support;
concerned about:
· Alberta's population is aging and the cost of sen-

iors care and programs is likely to increase;
· providing medication to residents,
· members of the public, professional organiza-
· maintaining medical records, particularly the
tions and members of the Legislative Assembly
application and recording of physical and
encouraged the Auditor General to examine and
chemical restraints, and
report on the extent to which the programs and
· developing, implementing and monitoring resi-
services were meeting seniors needs;
dent care plans.
· IN THIS ISSUE ·

Seniors Need Resources to Pursue Complaints
-- Mary A. Marshall .......................................................................................................................................1

Health Law in Canada
August 2005 Volume 26, No. 1

HEALTH LAW IN CANADA
The Report observed that two facilities appeared
Health Law in Canada is published four times a year
to schedule resident care for the convenience of
by LexisNexis Canada Inc., 123 Commerce Valley Drive
staff. In one case, staff washed and dressed residents
East, Markham, Ontario L3T 7W8
as early as 3:00 a.m. even though breakfast was not
Gilbert Sharpe 1997-2005
served until 8:00 a.m. In another facility, 75 per cent
All rights reserved. No part of this publication may be repro-
of the residents were in bed by 7:00 p.m.
duced or stored in any material form (including photocopying
There was considerable variation in practice be-
or storing it in any medium by electronic means and whether
or not transiently or incidentally to some other use of this pub-
tween facilities in assessing fees for such things as
lication) without the written permission of the copyright holder
transportation to medically necessary appointments,
except in accordance with the provisions of the Copyright Act.
bed alarms, restraint systems, relocation between
Permissions requests should be addressed to Gilbert Sharpe,
c/o LexisNexis Canada Inc.
rooms in a facility, and use of "hip-saver" pads to

cushion residents in case of falls.
ISBN 0-433-43326-4
ISSN 0226-88411
The Report noted a number of problems with
ISBN 0-433-44405-3 (Print & PDF)
the use of physical and chemical restraints. There
Subscription rates: $240 plus GST per year (Print or PDF)
were inconsistencies in policies, procedures, prac-
$290 plus GST per year (Print & PDF)
tice, decision-making, evaluation of outcomes,
Please address all editorial inquiries to:
charting methodology and involvement of family
Verna Milner, Journals Editor
members. Some facilities utilized chemical or
LexisNexis Canada Inc.
physical restraints, often without adequate docu-
Tel. (905) 479-2665; Fax (905) 479-2826
E-mail: hlic@lexisnexis.ca.
mentation and in a few isolated cases, without ap-

parent authorization.
EDITORIAL BOARD
The Report also identified a number of problems
EDITOR-IN-CHIEF:
relative to medication administration to residents,
Gilbert S. Sharpe, B.A., LL.B., LL.M.
including the following practices that pose signifi-
CO-EDITOR-IN-CHIEF:
cant safety risks:
David N. Weisstub, M.A., J.D.
· inconsistent documentation of the effectiveness
ASSOCIATE EDITORS:
Julio Arboleda-Flórez, M.D., Ph.D. · Raisa Deber, Ph.D.
and adverse effects of medication therapies, par-
· Barry Hoffmaster, M.A., Ph.D. · Hugh M. Kelly, Q.C.,
ticularly relative to pain control and chemical
B.A., LL.B. · Mary A. Marshall, LL.B., LL.M. ·
restraint;
Dr. William L. Orovan, B.Sc., M.B.A., M.D., F.R.S.C.(C),
· inadequate security and storage;
FACS · Madame Justice Ellen Picard, B.Ed., LL.B.,
· pre-pouring of medications;
LL.M. · Madame Justice Anne H. Russell, B.A., LL.B. ·
Ronald Stokes, M.D., D.Psych., F.R.C.P.(C.) · Deanna L.
· inconsistent control over phone orders signed-
Williams, B.Sc., PEBC, R.Ph., CAE
off by physicians; and

· insufficient or untimely notification of physi-
INTERNATIONAL EDITORS:
cians or pharmacists following medication
Belinda Bennett, University of Sydney, Australia · Prof. John
errors.
D. Blum, Loyola University, U.S.A. · Prof. Brian
Bromberger, University of New South Wales, Australia ·

Prof. E. Deutsch, Juristisches Seminar der Universitat,
The Report notes that most facilities collected
Gottingen, West Germany · Kate Diesfeld, Auckland
quality and performance indicator data, such as fre-
University of Technology, New Zealand · Ian Freckelton, La
quency of falls, incidence of skin breakdowns, infec-
Trobe University, Australia · Prof. Michael Freeman,
tions, unusual incidents and complaints. However,
University College London, University of London, England ·
the process for root cause analysis was inadequate,
Joseph Jacob, LSE, England · Prof. John Leverette, Queen's
and few facilities consistently analyzed this data to
University, Canada · Dr. Alexander McCall Smith,
University of Edinburgh, Scotland · Laurence R. Tancredi,
understand trends or patterns which may arise.
New York University, U.S.A.
The Report makes a number of recommendations.
Shortly after the Report was released the Minister of
Note: The articles included in Health Law in Canada reflect
the views of the individual authors. Health Law in Canada is
Health and Wellness and the Minister of Seniors and
not intended to provide legal or other professional advice and
Community Supports released a joint Statement in-
readers should not act on information contained in this publi-
dicating that the Report's recommendations support
cation without seeking specific advice on the particular mat-
the work that is already underway in the Depart-
ters with which they are concerned.
ments, and will assist with identifying further ac-

tions. For that reason, the Ministers accepted all the
2
2

Health Law in Canada
August 2005 Volume 26, No. 1

recommendations in the Report.3 They stated that the
contemplate areas covered by Basic Standards,
"...goal is to build a continuing care system that
such as provision of minimum care hours, fre-
works in partnership with residents and their fami-
quency of physician assessments, therapeutic di-
lies, and puts their needs first". This article builds on
ets, maintenance of health records and care
that goal by suggesting an independent Commis-
plans, user fees and trust accounts.
sioner to conduct investigations in long-term care

facilities. As well, this paper suggests that it is nec-
· The provisions of the Health Facilities Review
essary to provide seniors with access to formal ad-
Committee Act specifically prohibit the review
vocacy services, and to create a legal clinic that will
by committee members of medical records with-
provide individual and group advocacy, public legal
out the resident's consent,6 and financial records.
education, community development, and engage in
Their reviews are primarily qualitative-based as-
law reform activities.
sessments concerned with the dignity and satis-

faction of residents and families.
EXISTING AND PROPOSED MECHANISMS

· Members are not required to have medical
There are existing mechanisms for inspecting
training.
long-term care facilities and investigating

complaints. This section examines the limitations
· The Committee has no authority to enforce
of these mechanisms, as well as the proposed
compliance. There are no sanctions specified in
expansion of the jurisdiction of the provincial
the Health Facilities Review Committee Act for
Ombudsman.
facilities or regional health authorities that fail to

implement recommendations following an in-
HEALTH FACILITIES REVIEW COMMITTEE
vestigation by the Committee.

The Health Facilities Review Committee (the
PROTECTION FOR PERSONS IN CARE ACT
"Committee") was established in 1973.4 The Com-

mittee may investigate complaints at facilities in-
The Protection for Persons in Care Act is legisla-
cluding approved hos-
tion that requires health care providers, employees
pitals (acute care and
The Committee does not
and members of the public to report incidents of
auxiliary care), nursing
check for compliance with
abuse against any adults who receive care in hospi-
homes, mental health
all Basic Standards. Its
tals, seniors' lodges, group homes and nursing
hospitals, and special
processes do not contem-
homes.7 Abuse is defined as intentionally:
care centres. The plate areas covered by

Committee must visit
Basic Standards, such as
· causing bodily harm, by such actions as hitting,
the facilities "...for the
provision of minimum
kicking, or biting;
purpose of reviewing
care hours, frequency of
· causing emotional harm, by such actions as
and inspecting them
physician assessments,
threatening, humiliating, harassing, or socially
and the manner in therapeutic diets, mainte-
isolating a person in care;
which they are oper-
nance of health records
· administering or prescribing medication for an
ated". As well, the and care plans, user fees
inappropriate purpose;
Minister may request
and trust accounts.
· stealing money or valuables;
the Committee to con-
· failing to provide the necessities of life, such as
duct a visit, and report to the Minister on any matter
food or medical attention; or
specified in the request. Finally, if a complaint is
· subjecting a person in care to unwanted sexual
made, the Committee must investigate the care and
contact or activity.
treatment of the patient and the standards of accom-

modation of the facility.5
The Report notes that the Protection for Persons
However, there are limits on the Committee's role
in Care Act (PPIC) provides only limited assurance
and powers. The Report notes as follows:
of compliance with Basic Standards because:

· The Committee does not check for compliance
· PPIC responds to abuse complaints only; they
with all Basic Standards. Its processes do not
do not initiate reviews and are prohibited by

3

Health Law in Canada
August 2005 Volume 26, No. 1

their Act from reviewing residents' medical re-
independence, competence, and a systematic ap-
cords without consent, or facility records on fi-
proach.11
nancial matters.
As well, ombudsmen generally have the follow-

ing powers and protections:12
· PPIC does not conduct compliance or regulatory

reviews in long-term care facilities for the Basic
· unimpeded access to information;
Standards, policies, procedures or legislation.
· protection for the confidentiality of the proceed-
However, if they uncover evidence of a facility's
ings in order to facilitate co-operation through-
failure to meet the Basic Standards, policies or
out the investigation;
legislation, they will include appropriate rec-
· protection against the use of their evidence in
ommendations in their reports.
subsequent proceedings;

· immunity from prosecution for anything done in
OMBUDSMAN
good faith while exercising their duties; and

· the right to require information or documents, as
Alberta was the first
well as examine any relevant person on oath.
Canadian province to

The Ombudsman
appoint a public sector
In general, ombudsmen do not have the power to
may investigate any
Ombudsman. The Om-
enforce compliance with their recommendations and
act, decision or rec-
budsman may investigate
work through persuasion. As well, they have the
ommendation made
any act, decision or

power to publicize their concerns if recommenda-
in relation to a mat-
recommendation made
ter of administra-
tions are not implemented.
in relation to a matter tion when done by a
The concept of an ombudsman originated in Swe-
of administration when
government de-
den, and has expanded to many different countries.
done by a government partment, agency or
The broad concept of the public sector ombudsman
department, agency or
government em-
is widely regarded as successful for the following
government employee ployee acting in a
reasons:
acting in a government
government role.

role.8 The Ombudsman
· their independence is unquestioned;
may initiate an investiga-
· while following the rules of natural justice, the
tion following a complaint, on his "own motion", or
procedures of the ombudsmen are informal, in-
pursuant to a Ministerial request.
quisitorial and non-adversarial;
In 2003, the Ombudsman Act9 was amended to
· legal representation is not necessary; and
provide a framework for the extension of the Om-
· the service provided is free and (unlike the court
budsman's jurisdiction to include the patient con-
system) there is no risk to the complainant of
cerns resolution processes of the nine RHAs and the
having to pay the other party's costs if the com-
Alberta Cancer Board. In his most recent Annual
plaint is not upheld.
Report, the Ombudsman notes that the Office of the

Ombudsman is continuing to work with the Depart-
Patient ombudsmen are not "advocates" in the
ment of Health and Wellness to get the required
traditional meaning of that term. Advocates resolve
regulation passed which will allow the Ombudsman
patients' complaints according to their instructions.
to exercise that jurisdiction. However, progress has
Advocates may also provide support to patients to
been "slower than desired".10
resolve their own concerns or self-advocate. Sys-

temic advocacy may be used to address issues that
INTERNATIONAL MODELS
have an impact on the quality of care, life and rights

of a large number of patients.
There are patient ombudsmen in a number of dif-
In contrast, ombudsmen serve as impartial inves-
ferent countries including Austria, Finland, Greece,
tigators, although they may become an advocate for
Hungary, Israel, New Zealand, Norway, and the
the implementation of a recommendation at the con-
United Kingdom. As well, the United States has
clusion of an investigation.13
established an extensive system of specialized long-
This section will describe three models of special-
term care ombudsmen. Central features of an effec-
ized health ombudsmen: the New Zealand Health
tive patient ombudsmen system are impartiality,
and Disability Commissioner; the Health Service
4
4

Health Law in Canada
August 2005 Volume 26, No. 1

Commissioner for England, Scotland and Wales; and
behalf of consumers at a systematic level in policy
the U.S. Long-Term Care Ombudsman.
and media debates.

NEW ZEALAND HEALTH AND DISABILITY
HEALTH SERVICE COMMISSIONER FOR ENGLAND,
COMMISSIONER
SCOTLAND AND WALES

The Health and Disability Commissioner was cre-
The Health Service Commissioner (HSC) carries
ated in 1994 as an independent statutory ombudsman
out independent investigations into complaints about
to develop and enforce a Code of Consumers' Rights
poor treatment or service provided through the Na-
(the "Code") designed to "...promote and protect the
tional Health Service (NHS). The HSC looks into
rights of health consumers" and "facilitate the fair,
complaints against NHS services provided by hospi-
simple, speedy, and efficient resolution of com-
tals, health authorities, trusts, and health care practi-
plaints".14 The Code sets out ten rights that are
tioners. Also, the HSC can investigate complaints
available to all health and disability services con-
against private health providers if the treatment was
sumers, including the right to be treated with respect,
funded by the NHS. The HSC is statutorily inde-
to be free from dis-
pendent, and has extensive investigative powers,
crimination or exploi-
The long-term care om-
including the power to summon witnesses and to
tation, to dignity and
budsman (LTC ombuds-
access records. It is supported by a directorate of
independence, to effec-
man) program began in
expert clinical advisors.
tive communication, to
1972. LTC ombudsmen
The HSC has a number of options at the end of an
be fully informed and
investigate complaints
investigation. If something has gone wrong, the HSC
to give or withhold
from residents of nursing
can get the organization or practitioner involved to:
consent, to services of
homes, board and care

an appropriate stan-
homes, assisted living fa-
· provide an explanation and acknowledgment of
dard, and to complain.
cilities and similar adult
what went wrong; and
Consumers are broadly
care facilities.
· take action to put the matter right, including an
defined to cover all
apology.
users of health or disability services (not just pa-

tients in traditional hospital settings). A broad range
Where there are serious faults, the HSC can also
of providers are subject to the Code from institu-
recommend:
tional providers, and registered health professionals

to alternative providers. The Code recognizes the
· changes are made in the way the organization or
responsibility of providers to take into account the
practitioner works so that similar things or inci-
needs, values and beliefs of Maori, the indigenous
dents aren't repeated;
people of New Zealand.
· lessons are learnt from things that have gone
The Commissioner is required "[t]o promote,
wrong; and
by education and publicity, respect for and obser-
· payment should be made for a financial loss or
vance of the rights of health consumers..." and
for the inconvenience or worry that has been
"[t]o make public statements and publish reports
caused.
in relation to any matter affecting the rights of

health consumers...".15
The HSC notes on the Web site that "[w]hile we
The Commissioner's focus is on protecting and
have no formal power to enforce our recommenda-
promoting consumers' rights through complaint
tions they are almost always followed".17
resolution. The Commissioner also engages in sys-

temic advocacy:16
U.S. LONG-TERM CARE OMBUDSMAN

Rather than resigning itself to being an `ambulance
at the bottom of the cliff', the Commissioner's Of-
The long-term care ombudsman (LTC ombuds-
fice seeks to `build a fence at the top' by contribut-
man) program began in 1972. LTC ombudsmen in-
ing to quality improvement in a number of ways.
vestigate complaints from residents of nursing
The Commissioner uses individual investigation re-
homes, board and care homes, assisted living facili-
ports for educational purposes, and advocates on
ties and similar adult care facilities.

5

Health Law in Canada
August 2005 Volume 26, No. 1

The LTC ombudsman program is established in
· be fully informed prior to admission of their
all states under the Older Americans Act, which is
rights, services available and all charges; and
administered by the Administration on Aging (AoA).
· be given advance notice of transfer or discharge.
One thousand paid and 14,000 volunteer staff in-

vestigate over 260,000 complaints each year.18 Om-
ONTARIO MODEL
budsman responsibilities outlined in the Older

Americans Act include:
The Ontario Ministry of Health and Long-Term

Care is currently engaging in a consultation process
· identify, investigate and resolve complaints
relating to "Future Directions for Legislation Gov-
made by or on behalf of residents;
erning Long-Term Care Homes". A Seniors' Advo-
· provide information to residents about long-term
cate is one of the suggestions that has been put
care services;
forward to enhance protection for seniors.19 The Sen-
· represent the interests of residents before gov-
iors' Advocate would be empowered to advocate on
ernmental agencies and seek administrative, le-
behalf of residents who could not or need assistance
gal and other remedies to protect residents;
to speak for themselves. The Seniors' Advocate
· analyze, comment on and recom-
would complement the work already un-
mend changes in laws and regula-
dertaken by the Advocacy Centre for the
The Ontario Ministry of
tions pertaining to the health,
Elderly (ACE).
Health and Long-Term
safety, welfare and rights of resi-
ACE was established in 1984, and is
Care is currently engag-
dents;
ing in a consultation
one of 70 community legal clinics in
· educate and inform consumers and
process relating to "Fu-
Ontario.20 ACE was the first community
the general public regarding issues
ture Directions for Leg-
legal clinic in Canada providing legal
and concerns related to long-term
islation Governing
services to seniors with a focus on "elder
care and facilitate public comment
Long-Term Care
law" issues such as health care consent,
on laws, regulations, policies and
Homes". A Seniors' Ad-
substitute decision-making, long-term
actions;
vocate is one of the sug-
care, community care, retirement home
· promote the development of citizen
gestions that has been
tenancies, seniors' consumer issues, and
organizations to participate in the
put forward to enhance
elder abuse. ACE currently employs five
program;
protection for seniors.
lawyers and three support staff. All the
· provide technical support for the
staff provide direct client services al-
development of resident and family
though each has a primary area of responsibility. The
councils to protect the well-being and rights of
residents; and
lawyers include an Executive Director that, along
· advocate for changes to improve residents' qual-
with the Office Manager, is responsible for the
ity of life and care.
operational management of the clinic. Two of the

lawyers are primarily responsible for the client in-
Ombudsmen help residents and their families and
take service and any litigation undertaken for clients.
friends understand and exercise rights that are guar-
One lawyer is primarily responsible for the legal
anteed by law, both at the federal level and in many
research as well as the ACE publications and Web
states. Residents have the right to:
site. One lawyer is an "Institutional Advocate". The

institutional advocate is responsible for providing
· be treated with respect and dignity;
legal services to clients who need advice or assis-
· be free from chemical and physical restraints;
tance with legal issues in long-term care homes,
· manage their own finances;
hospitals, psychiatric facilities, and other institu-
· voice grievances without fear of retaliation;
tional settings.21
· associate and communicate privately with any
ACE provides services in four areas:
person of their choice;

· send and receive personal mail;
· individual and group client advice and represen-
· have personal and medical records kept confi-
tation,
dential;
· public legal education,
· apply for state and federal assistance without
· community development, and
discrimination;
· law reform activities.

6
6

Health Law in Canada
August 2005 Volume 26, No. 1

INDIVIDUAL AND GROUP CLIENT ADVICE AND
LAW REFORM ACTIVITIES
REPRESENTATION

ACE has been active in law reform activities af-
ACE provides advocacy in a wide variety of ar-
fecting the elderly for over 20 years. ACE is well
eas, including those that were of concern in the
placed to provide input into government initiatives
Auditor General's report. The following case exam-
to amend legislation, policies or procedures as a re-
ples are taken from a recent report:22
sult of ACE's individual and group client advice and

representation.
In the past, we have had complaints from numerous
As an example, ACE was one of the stakeholders
residents of long-term care homes who are locked in
that provided advice to the Ontario Ministry of
because they do not want to stay at the home, not
Health and Long-Term Care on revisions to stan-
because they are at risk of wandering and potential
dards that apply to long-term care facilities. The
harm. This is not a legal use of these units. How-
ever, there is no system in place to challenge
standards relate to the use of restraints, abuse, re-
placement, and unless they have access to an out-
porting of "critical incidents", skin care and wound
side advocate, it may be impossible for these resi-
care management, nutrition and hydration, and con-
dents to challenge their placement.
tinence care. The Ministry plans to review and revise

all existing standards and policies relating to long-
Blanket consents to treatment are frequently found
term care in the near future.
in admission contracts. The clauses we have seen

state that the resident, or substitute decision-maker
ANALYSIS AND CONCLUSION
if the resident is not mentally capable "pre-

consents" or "consents" to anything that the physi-
cian or other health care practitioners should order
The Auditor General's Report sets out the re-
for the resident's care while the resident is living at
sults of his audit, highlights a number of concerns,
that particular long-term care home, unless the
and makes helpful recommendations that have
resident or substitute decision-maker specifically
been accepted by the Minister of Health and Well-
objects.
ness, and the Minister of Seniors and

However, the Report
Community Supports. However, the
PUBLIC LEGAL EDUCATION
also makes it clear that
Report also makes it clear that seniors

seniors are a vulnerable
are a vulnerable sector of the popula-
ACE provides public legal education
sector of the population
tion that requires better access to inves-
to seniors so that they know their
that requires better ac-
tigative and advocacy services when
rights, are able to self-advocate, and
cess to investigative and
complaints and concerns occur. The
know when to seek legal assistance.
advocacy services when
proposed expansion of the Ombuds-
ACE also provides legal education to
complaints and con-
man's mandate will provide for juris-
those who provide services to seniors
cerns occur. The pro-
diction over the patient concerns
because of their influence in seniors'
posed expansion of the
resolution processes of the RHAs. The
lives.
Ombudsman's mandate
Alberta Office of the Ombudsman has a
ACE staff deliver numerous com-
will provide for jurisdic-
great deal of expertise in designing ef-
munity presentations and workshops
tion over the patient
fective complaint systems,23 and the
each year. As well, ACE publishes a
concerns resolution
regulation that will allow him to begin
number of pamphlets and booklets on
processes of the RHAs.
investigating RHAs should be finalized
seniors legal issues, such as "Long-
and brought into force as soon as possi-
Term Care Facilities in Ontario: The Advocate's
ble. The complaints process should be well-
Manual".
defined and easy for a complainant to use. In this

way, those with legitimate complaints will be en-
COMMUNITY DEVELOPMENT
couraged to come forward. However, a specialized

Commissioner for Long-Term Care would be able
ACE has engaged in various community devel-
to investigate complaints against a wide variety of
opment activities, including a recent project working
providers, including long-term care facilities and
with communities throughout Ontario to set up elder
seniors' lodges. The Commissioner would be able
abuse community response networks to address elder
to conduct impartial investigations, and make rec-
abuse at the local level.
ommendations in appropriate cases. The Commis-

7

Health Law in Canada
August 2005 Volume 26, No. 1

sioner should be empowered to conduct "own mo-
velopment of the expertise required to assist indi-
tion" investigations, as well as respond to com-
viduals with their concerns and complaints, and
plaints. This power is critical when dealing with
identify systemic problems. Consequently, these is-
vulnerable populations, such as seniors in long-
sues could be addressed on a timely basis by service
term care facilities. If the Commissioner observes
providers, and regional health authorities. As well,
patterns, such as inappropriate use of restraints, he
the Alberta government would receive well-
or she should be able to conduct an investigation
informed comments and submissions on necessary
without waiting for a specific complainant to
changes to legislation, policies and procedures.
come forward. Patients or their families may fear

repercussions if they bring a complaint against
[Editor's note: Mary A. Marshall is Principal of
caregivers, and this fear may deter them from
the Mary A. Marshall Professional Corporation in
making their concerns known. As well, the Com-
Edmonton, Alberta.]
missioner should have unimpeded access to in-

formation. This would avoid some of the
1
Report of the Auditor General on Seniors Care and
limitations currently experienced by those con-
Programs, May 2005, available at: <http://
ducting reviews under the Health Facilities Re-
www.oag.ab.ca/>.
2
view Committee Act, and the Protection for
The Alberta Seniors Benefit Program is the primary
provincial program providing financial support to
Persons in Care Act. Although the Commissioner
seniors in Alberta, many of whom live in long-term
would have the powers of an ombudsman (i.e., the
care facilities and lodges.
power to recommend and not order), the Commis-
3 Ministers'
Statement,
Auditor General's Report on
sioner should also have the discretion to publicize
the Government of Alberta's Seniors Core Services
the results of investigations when recommenda-
and Programs, May 9, 2005, available at:
tions are not accepted; or, when the conclusions of
<http://www.health.gov.ab.ca/>, and attached as Ap-
a systemic investigation would be helpful infor-
pendix A. The Government MLA Task Force on Con-
mation for the public.
tinuing Care Health Service & Accommodation
In addition, seniors need better access to advo-
Standards has issued a Discussion Guide to obtain
cacy services. Alberta has been slow to embrace the
feedback on health and accommodation services in
community legal clinic model that has been used
continuing care available on-line at: <http://www.
successfully to provide legal assistance to low-
continuingcare.gov.ab.ca/pdf/Discussion_Guide.pdf>.
4
Health Facilities Review Committee Act, R.S.A.
income persons in Ontario and other provinces. As
2000, c. H-3.
noted by the Canadian Bar Association,24
5
Ibid., ss. 7-8.

6
The Health Facilities Review Committee Annual Re-
For people with little money, publicly funded legal
port for 2003-2004 indicates that 34 complaints were
representation through legal aid plans allows them
received between April 1, 2003 and March 31, 2004.
to rely upon legal protections and guarantees that
However, out of that total number, the Committee
are intended for all. Without legal aid, access to jus-
was unable to proceed with an investigation of 24
tice is a hollow idea - many individuals simply can-
complaints because the Authorization to Disclose
not take advantage of these legal entitlements and
Health Information Form was not received.
protections.
7
Protection for Persons in Care Act, R.S.A. 2000,

c. P-29.
The Alberta Legal Aid Society has established
8 The extent to which the provincial Ombudsman has
Family Law Offices,25 and Youth Criminal Defence
jurisdiction over health care bodies varies from prov-
Offices26 in Edmonton and Calgary. Both were
ince to province. For example, the government of
started as pilot projects, and confirmed as continuing
Nova Scotia has recently expanded the provincial
programs after their usefulness was established fol-
Ombudsman's jurisdiction to include nursing homes,
lowing a substantial period of time for evaluations.
residential care facilities for seniors, and homes for
The Advocacy Centre for the Elderly established in
the aged. See "Seniors Services" at: <http://www.
gov.ns.ca/ombu/Child_Ombud/senior.asp> and
Ontario serves as a useful model for a future pilot
"Young People and Seniors Benefit From Changes to
project in Alberta.
Jurisdiction" May 27, 2005, at: <http://www.
As the Auditor General notes in his Report, the
gov.ns.ca/news/details.asp?id=20050527004>.
systems are complex. The establishment of a special-
9
Ombudsman Act, R.S.A. 2000, c. O-8.
ized Commissioner for Long-Term Care, along with
10 The 37th Annual Report of the Office of the Om-
a dedicated advocacy service, would permit the de-
budsman covering the period from April 1, 2003 to
8
8

Health Law in Canada
August 2005 Volume 26, No. 1

March 31, 2004 is available on-line at: <http://

test cases, public legal education, community orga-
www.ombudsman.ab.ca/AnnualReport2004.pdf>.
nizing, and other law reform initiatives. Most commu-
11 See Lars Fallberg, "Patients Ombudsmen a Differ-
nity legal clinics are located in specific geographic
ent Approach to Improve Quality in Health Services"
communities, and each community in Ontario is served
(2003) 10 European Journal of Health Law 339; Lars
by a clinic. As well, there are 17 specialty legal clinics
Fallberg and Stephen Mackenney, "Patient Ombuds-
that either deal with a specific area of law (e.g., work-
men in Seven European Countries: an Effective Way
ers' compensation, workers' health and safety), or rep-
to Implement Patients' Rights?" (2003) 10 European
resent a specific, non-geographic community (e.g.,
Journal of Health Law 343.
seniors, the disabled, urban aboriginals).
12 See Mary A. Marshall and Linda C. Reif, "The Om-
21 This information is taken from a December 2004
budsman: Maladministration and Alternative Dispute
submission prepared by the Advocacy Centre for the
Resolution" (1995) 34 Alta. Law Rev. 215.
Elderly entitled Future Directions for Legislation
13 See Dean M. Gottehrer and Michael Hostina, "Essen-
Governing Long-Term Care Homes, directed to
tial Characteristics of a Classical Ombudsman", on-
Monique Smith, MPP, Parliamentary Assistant to
line: United States Ombudsman Association <www.
George Smitherman, MPP, Minister of Health and
usombudsman.org>.
Long-Term Care.
14 The Health and Disability Commissioner Act 1994,
22 Ibid.
1994 No 88, s. 6.
23 See
Internal Complaint Mechanism, Alberta Office of
15 Ibid., ss. 14(1)(c), (d).
the Ombudsman Web site, located at: <http://
16 R. Patterson, Dr. M. Bismark, "Investigating the
www.ombudsman.ab.ca/complaint.html>.
Quality of Psychiatric Care: The New Zealand Ex-
24 Canadian Bar Association, "CBA Launches Test Case
perience" 24 Health Law in Canada, No. 3, 60 at 63.
to Challenge Constitutional Right to Civil Legal Aid",
17 See Web site for Parliamentary and Health Service
Media Release, June 2005, available on-line at:
Ombudsman, Making a Complaint, located at:
<http://www.cba.org/CBA/News/2005_Releases/2005-
<http://www.ombudsman.org.uk/make_a_complaint/
06-20_backgrounder.aspx>.
health/index.html>.
25 Legal Aid Family Law Offices opened in Edmonton
18 This information is taken from the Administration on
and Calgary in 2001 as a four-year pilot project
Aging Web site at: <http://www.aoa.dhhs.
funded by the Legal Aid Society of Alberta. The
gov/prof/aoaprog/elder_rights/LTCombudsman/ltc_
status of the project recently changed from pilot to a
ombudsman.asp>.
continuing program. In each office, lawyers, social
19 See "Future Directions for Legislation Governing
workers, and specialized support workers streamline
Long-Term Care Homes", 2004 Submission of the
access to Legal Aid assistance during divorce, child
Psychiatric Patient Advocate Office, available on the
welfare disputes, custody disputes, and other family
Web site at: <www.ppao.gov.on.ca/pos-ltc.html>.
law issues.
Also see Commitment to Care: A Plan for Long-Term
26 The Legal Aid Society of Alberta, the Law Society of
Care in Ontario, Spring 2004, at p.16., available on
Alberta, and the Alberta Justice Department approved
the Web site at: <http://www.health.gov.on.ca/
the establishment of a three-year pilot project to test-
english/public/pub/ministry_reports/ltc_04/mohltc_
out a staff delivery model of providing legal service
report04.pdf>.
to young offenders in Edmonton and Calgary, starting
This Report was prepared by Monique Smith, Par-
with the opening of offices in both cities in October,
liamentary Assistant, Ministry of Health and Long-
1993. After two-and-a half years of evaluation, the
Term Care as a result of a request by the Minister to
Legal Aid Society of Alberta adopted the recommen-
undertake a review of long-term care facilities across
dation that the Legal Aid Youth Office project be con-
Ontario. Ms. Smith concludes that there is a "need for
tinued on a permanent basis. The Youth Criminal
a third party to advocate on behalf of seniors in long-
Defence Offices operate under the supervision of a
term care homes".
Senior Counsel who is hired by and reports to the
20 Community legal clinics have been established in
Board of Directors of the Legal Aid Society. The Of-
Ontario to address the unique legal needs of low-
fice also employs eight other lawyers in Calgary and
income people and communities. Lawyers and legal
seven in Edmonton. Two social workers, four youth
workers provide information, legal advice, and repre-
workers and four administrative employees support
sent people. In addition, clinics also can engage in
the lawyers.

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Health Law in Canada
August 2005 Volume 26, No. 1

APPENDIX A MINISTERS' STATEMENT

AUDITOR GENERAL'S REPORT ON
THE GOVERNMENT OF ALBERTA'S SENIORS
CORE SERVICES AND PROGRAMS

The Auditor General, this government and our departments have a common goal: to ensure that Albertans receive qual-
ity programs and services for public expenditures. Quality services and programs for seniors are respectful, safe, pre-
serve their dignity and, to the extent possible, support their independence.

The majority of seniors receiving care through publicly funded home care, assisted living and long-term care facilities
do receive quality care. However, we do have some concerns.

Our departments have already taken action. Our goal is to build a continuing care system that works in partnership with
residents and their families, and puts their needs first.

Working with health authorities, Alberta Health and Wellness has launched several initiatives over the last few months.
Those initiatives include:

· Development of new standards for Continuing Care Health Service Standards;
· Implementation of improved resident assessment tools, which will show whether individual care needs, and
provincial health goals, are being met;
· Development of standardized elements for contracts between Regional Health Authorities and long-term care
operators;
· Development of a training program for health care aides; and
· Increasing the average care hours per resident from 3.1 to 3.4 per day by the end of this fiscal year
(2005/2006).

Updating the Continuing Care Health Services Standards has been one of Alberta Health and Wellness' first priorities.
These new standards will focus care practices around the needs of the individual. By focusing how we care for resi-
dents around their individual needs, we improve their quality of life, as well as the quality of care. Our proposed new
standards will:

· require development of a care plan for each client, and focus measuring and reporting on the effectiveness of
care provided to each individual;
· clearly spell out the responsibilities of clients and their families, health care providers, operators, Regional
Health Authorities and the department; and
· establish a process for regular reviews and upgrading of standards to meet professional best practices.

Alberta Seniors and Community Supports will build on the Auditor General's recommendations by continuing work in
the following areas:

· re-establish reviews of seniors lodge facilities while lodge standards are being clarified and enhanced;
· review how the Alberta Seniors Benefit Program meets the financial needs of seniors following the July 2004
increase to income thresholds and monthly payments;
· develop accommodations standards for long-term care, supportive living environments and seniors lodges, and
ensure appropriate mechanisms are in place to monitor compliance with these standards.

MLA Len Webber, Chair of the Healthy Aging and Continuing Care in Alberta Implementation Advisory Committee,
and MLA Ray Prins, Chair of the Seniors' Advisory Council, will conduct a stakeholder review of the standards begin-
ning immediately and concluding by the end of August this year.

We want to thank the Auditor General for his work, which was thorough and thoughtful.

His recommendations support the work that is underway, and will help us identify further actions. For that reason, we
intend to accept all the recommendations in his report.

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Health Law in Canada
August 2005 Volume 26, No. 1

We will be working together with Regional Health Authorities and health care providers on several further initiatives to
improve monitoring for compliance with standards, measures of the cost effectiveness of services, and planning for the
future. Alberta Health and Wellness will introduce more frequent, unannounced quality assurance visits to long-term
care facilities with quality improvement and monitoring teams composed of clinical and management operations spe-
cialists, in addition to the current work of the Health Facilities Review Committee.

We want to emphasize that although 70 per cent of standards were fully met, and that in many cases Regional Health
Authorities have moved beyond the current standards for care, we need to do much better. Standards need to be im-
proved, and this is a core piece of what we will do.

In that work, as in all our actions, we will keep our eyes on the target: working with those in care to clearly understand
and respond to their individual medical, physical and social needs.

This will mean change and we face challenges. It requires ensuring that a variety of services are available and accessi-
ble, emphasizing both quality of life and quality of care, and promoting independence to the extent possible. Working
with those who need care, their families, health care providers and Regional Health Authorities, we can meet those
challenges.

Honourable Iris Evans, Minister of Health and Wellness

Honourable Yvonne Fritz, Minister of Seniors and Community Supports

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Health Law in Canada
August 2005 Volume 26, No. 1

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