Challenging institutionalized disrespect of elders

By Rob Wipond, May 2012

Our seniors care system is operating with a severe lack of standards. So what happens when the BC Ministry of Health gets into the cross hairs of a former Canadian Forces court martials judge?

Even though this is BC’s retirement capital, many people in Greater Victoria aren’t aware that the largest, most comprehensive, and most damning independent investigation into seniors care ever written in this province was recently released. That’s because provincial Ombudsperson Kim Carter’s The Best of Care: Getting it Right for Seniors in British Columbia (Part 2) was kept under wraps and then released by the government just days before Premier Christy Clark’s radio-show throne speech and the 2012 provincial budget. Vulnerable seniors got just a smattering of coverage before quickly disappearing under more potent topics in the news cycle. That timing might seem coincidental; however, in 2009, Part 1 was also coincidentally released by the Liberals a week before Christmas.

When I sat down to read Part 2’s hefty 448 pages of findings with its 176 recommendations, I realized the government had reasons for hoping the media and public never learned much about it. The ombudsperson’s report is a page-turner of astounding revelations and a searing indictment of our entire seniors care system and its governance. It’s surprising the scandal-infested document with its call for far-reaching changes hasn’t gotten more traction in our media, notwithstanding Christmas and the provincial budget. 

“I think the difficulty is, it’s a big report,” says Ombudsperson Kim Carter in her Fort Street office when I comment on the relative paucity of news coverage. “The reports that we and other independent offices do that focus on one incident and then draw conclusions from that…that’s much easier, I think, for the media to look at and report out on. Because it tends to be a story, usually an unhappy story, and so it’s much easier and it tends to be shorter reports… [The Best of Care] is a really dense, complex report, so it’s hard to just do a quick story about it.” 

It’s a savvy explanation that’s reflective, I soon learn, of Carter’s extensive background working on high-profile issues—experiences which have also helped shaped her perspectives on her role now as BC ombudsperson.

A lawyer and former chief military judge in the Canadian Forces, Carter says her time spent as military senior counsel during the Somalia Inquiry and doing wartimes investigations in Sarajevo for the United Nations had particularly profound influences on her. “I have been places where governments didn’t really care that much about their people and treating them fairly,” says Carter. “They weren’t particularly happy locations, they weren’t good places to be born, grow up, have a family, or grow old. And so the concept of the ombudsperson is really one [that] gives people some confidence that government cares about how they’re treated. And I think that’s actually a real hallmark of democracy.” 

Carter therefore describes the ombudsperson’s role as an access point to “participative democracy.” People can help increase “administrative fairness” in public bodies by coming to her with complaints which her office investigates in an impartial, “solution-oriented” manner. However, she notes, her job should be distinguished from being an advocate for individuals against public bodies, which is what many complainants think her office is for. “We’re not the advocates for the complainant who comes in…We’re there to advocate for everyone, including them, to be treated fairly.” 

She also learned from the Somalia tragedies, she adds, about the dangers of ignoring such complaints and warning signs. “What this office does is, it’s an opportunity to fix things before you come to the crisis,” suggests Carter. “It’s a way of bringing the problem to people’s attention. Whether they can fix it, or whether they do fix it—different issue. But I really think an effective and cost-efficient way of doing things is not having the crisis. And that’s just for the organization. Of course, for the people who are actually the ones who are the subject of the crisis, for them, it’s really, really good not to have [the crisis].”

So is working as BC’s ombudsperson a fuzzy-wuzzy succession of respectful, professional chats in the park by comparison to her stints in war zones? “What I would say is, you sometimes have ‘frank and comradely’ discussions, as we describe it,” she says. “People are respectful generally, but they can get emotional—both complainants who would like the office to be able to do more or get them more, and also authorities who can sometimes be not as open-minded as they think they are, and perhaps somewhat defensive…No one comes over the table, but I’ve certainly been chewed out by people at different levels. But that’s part of being independent. Everyone is really, really in favour of you being independent, as long as you’re making the decision that they would have made.”

Since her office had been receiving hundreds of such impassioned complaints about seniors care, Carter decided to launch a “systemic investigation.” And by the time her report gets to findings 1 and 2, it’s apparent battles over even basic information and facts must’ve begun on day one.

Funding facts hard to find

There’ve been a lot of claims and counterclaims about increases or decreases in seniors’ funding, costs, services and residential bed numbers. It turns out there’s good reason for the confusion. The Ministry of Health doesn’t actually target and track the funding going into home and community care services or what results are achieved, the ombudsperson found: “The Ministry of Health and the health authorities were unable to provide consistent and reliable data about home and community care services.”

“[Provincial funding decisions are] mainly based on what happened last year,” explains Carter, instead of decisions being based on actual needs assessments. “And there isn’t actually a track that says, ‘You said you needed this much, did you spend all that on that?...Or did you spend more on this and less on that?’”

Meanwhile, most facilities are raking in extra fees for anything and everything from medically required briefs to larger rooms, often without any clear legal right to do so—and usually not informing seniors about these extra charges until they’ve moved in. The government has recently issued guidelines about what should and shouldn’t be charged for, but it remains unclear if they intend to enforce these. One of Carter’s oft-repeated recommendations throughout the report, therefore, is that government should at least track and publicly report more thoroughly on what’s happening in seniors’ care, so that discussions, debates and decisions can be more sensible.

“As government struggles with, as they’ve indicated they expect to be struggling with, what services can be provided and what services can’t be provided, it’s much better if everyone is essentially operating from the same set of objective facts. As opposed to, ‘Well, I don’t really know what the numbers are, but I really think this should happen.’” 

Carter has similarly long recommended developing a centralized web portal to display basic resources, assistance and facilities that are available, so people looking into care options can readily compare services, fees, staff qualifications, or inspection histories. In recent years, she says, there’ve been incremental improvements on that front. “There’s much better information now,” she says. But lack of transparency and outright confusion remain hallmarks of BC’s seniors care system. Indeed, one of the most surprising things she learned during her research, says Carter, was how complicated it all is.

“It could be a facility run by a public authority regulated under the Community Care and Assisted Living Act. It could be a private hospital run by a for-profit entity under the Hospital Act. It could be a not-for-profit run under either Act.” She said their team drew up a table to help grasp the differing relationships between types of facilities, laws, and administrative bodies. “I kept saying, ‘Okay, I understand this.’ And then we’d do something, and I’d say, ‘Okay, so I don’t understand that.’…You usually think of a government program as applying to people in a somewhat consistent fashion. Well, that clearly wasn’t the case.”

And the reasons for most of these differences, she discovered, were usually “historical”; that is, they exist because that’s simply the way the system got built up over decades by different levels of governments with different agendas, rather than operating today as part of any cohesive program or rationale. 

As a result, certainly one of the most significant accomplishments of the ombudsperson’s report is that it provides a comprehensible explanation of how all the divergent components of seniors care operate and interrelate. However, that in turn sheds sharper light on the extent and seriousness of the problems. 

 

Standards of care lacking

The ombudsperson’s report becomes most disturbing as it identifies the severe dearth of legal or professional standards for either staff or facilities, whether public, private or mixed. Reviewing just a fraction of these findings, the report reveals that there are no enforceable standards for staff qualifications or staff numbers in residential care. Care aides receive no standardized training, and in private facilities needn’t have criminal or abuse histories checked. There are no legal standards in residential care for bathing frequency, dental care, regularity of assistance with getting to the bathroom, call-bell response times, meal preparation and nutrition, or resident rights to even have visitors let alone informed consent to medications.

Like a rusty ship’s hull springing new leaks with every movement, these worrying, eye-opening findings compound upon each other page after page. In assisted living, there are no legally binding standards for staffing, residents rights, food safety and nutrition, or emergencies, and residents can be evicted with no notice, without appeal. (Government wrote improvements to these tenancy laws 15 years ago, but hasn’t enacted them.) There are no legal quality of care standards for home support services. Extended-care hospitals are not subject to routine, independent inspections—most have not been inspected in years—and aren’t subject to any legal standards for hygiene, emergency preparedness, nutrition, general living conditions, or administration of medication. (Government developed legislation to correct this nine years ago, but has not enacted it.)

“I think what is demonstrated here is the result of a number of years of movement from objective regulatory standards to outcomes,” says Carter. “So essentially, as currently worded, the standards tend to be things such as, ‘You need to have adequate staff. You need to ensure that staff are properly trained.’…The difficulty is, how do you know when there’s inadequate staff and inadequate training?... Does that mean there should be a registered nurse on, or not?” 

By contrast, her report shows a table of the precise, legislated staff qualifications and staff-to-child ratios for daycare centres. “In children’s care, it’s really clear,” she explains. “You say, here are vulnerable children, and we’re not going to just say ‘adequate.’ We know that there’s a certain number [of staff] that you’ve got to have. Some seniors in residential care, indeed perhaps a not insignificant percentage, are just as vulnerable.” 

In that regard, one finding is particularly haunting: There are no legal requirements for health professionals to report outright abuse or neglect of seniors to anyone. “Again, the example is young children, where there is an obligation,” comments Carter. “The people who are providing [seniors care] are dealing with a pre-qualified group who’ve got physical frailty or cognitive impairment or both, and it makes sense to say you really should be reporting if you think that they’re abused and neglected.”

It’s understandably difficult to assess how widespread or serious the resulting problems of such a profound lack of professional and regulatory standards could be, particularly when government isn’t effectively monitoring seniors care. However, by way of example, Carter points to a recent coroner’s report. 

Last year, Eldon Mooney choked to death on his food in a Vancouver privately-run residential facility. According to the coroner, the senior had been admitted to the facility too quickly in the first place, before any appropriate medical assessment of his needs had been done (provincial policies require wait-listed seniors to move within 48 hours of the first available bed appearing in any facility in their area, a practice Carter also recommends changing). Mooney had no teeth and had recurring choking problems, yet significant aspects of his care plan were absent, and other aspects of it were being ignored by staff. Neither staff nor supervisors were trained in proper feeding techniques nor basic medical emergency response. Staff failed to try to help Mooney as he choked and, afterwards, they lied about what had happened. Mooney’s treating physician declared it a “natural death.”

And the only reason any of this came to light was because a concerned relative of Mooney’s had surreptitiously installed a “nanny cam” in the room. In response to the coroner’s investigation, facility management has ensured a nurse is on site 24 hours and instituted new staff training.

 

Inspections lax

One aspect of seniors care that does have clearer regulations in place is the licensing of residential care facilities (these exclude extended care hospitals). However, the ombudsperson found licensing regulations aren’t exactly being vigorously enforced.

The provincial director of licensing oversees 250 residential care facilities for 19,000 people. But in eight years, the director has inspected only four facilities and taken only 20 actions on standards, policies or serious incidents.

Staff working under regional directors of licensing inspect facilities more regularly. However, enforcement of regulations is a gradual back-and-forth process that can take months or years—and “exemptions” from compliance can also be granted. The licensing director isn’t required to publicly disclose such exemptions, and there’s an obvious conflict of interest: The licensing director is by provincial law also the regional chief medical health officer. So he or she is employed by the health authority and sits on its executive team, and is simultaneously granting exemptions to facilities that are providing needed care beds for—or even being run by—that same health authority. Perhaps not surprisingly, then, in the past decade, only two facilities in the entire province have had their licences suspended or cancelled. 

The ombudsperson examined the case of one Victoria residential facility. VIHA’s licensing staff started investigating and confirming reports of physical abuse, neglect, improper medicating, poor hygiene and other violations at the privately-run facility in 1997. Over the next ten years, VIHA licensing staff attempted to bring the wayward facility into line, while complaints, alleged or confirmed, continuously rolled in, sometimes dozens per year, including staff punitively pouring water over seniors, on-duty staff shutting off the call-bell system so they could sleep at night, outdated and poorly written care plans, delays in giving proper medical treatment, and failure to report serious incidents like neglect, falls and unexpected illnesses. Twice VIHA appointed independent administrators to take over the facility for a time, but the facility’s licence to operate was never suspended or cancelled. 

And if you want to complain about any of this, good luck.

 

Complaints processes confusing

The ombudsperson found that throughout seniors care, from home support to assisted living and residential care, health authorities typically do not track complaints, do not provide clear and consistent information about how to complain, and do not inform complainants about the results of investigations. Often, having complaints processes isn’t even a legal requirement, and sometimes they simply don’t exist. And complainants, including staff and family members, are often not legally protected from reprisals if they report incidents or make complaints.

The ombudsperson found that even the much ballyhooed Patient Care Quality Offices aren’t sure of their own responsibilities and, in many cases, are simply directing complaints back for “investigating” by the same people the complaints are about.

“One part of administrative fairness is having good complaints processes. And that has become more and more important as you reduce other mechanisms of verification, such as reporting, such as inspections,” comments Carter. “As you cut back in those other areas, the complaints become in some areas your principle monitoring. So you’d better have a very, very well-defined complaints process, a very responsive one, one that actually encourages people to come to you. Because you’re relying on them.”

So how have authorities responded to the ombudsperson’s “complaints”?

 

The government’s response

An ombudsperson’s recommendations are usually very specific suggestions for legislative, regulatory or procedural changes aimed at improving systemic consistency, transparency and fairness. And normally, public agencies respond by ensuring the recommendations are implemented or in progress before the final report is even finished or, occasionally, by providing a rationale for rejecting a recommendation. 

All of the health authorities did this in relation to the ombudsperson’s seniors report. However, most of Carter’s 176 recommendations require action from the BC Ministry of Health and, in a stark break from traditional practice, the provincial government merely provided a general, rambling, evasive, four-page letter in reply, expressing concern about the “large number of findings and recommendations” that would take time to digest, while asserting their commitment to “accountability, transparency, choice and respect.” 

But shouldn’t our provincial government have responded to each of the recommendations directed at them? “It would be nice, it would certainly be clear, and it certainly had been the practice in the past,” replies Carter. “This one has been different…Hopefully it’s being worked on.”

I contacted the BC Ministry of Health, and their spokesperson emailed a link to a “broader response to the ombudsperson’s recommendations,” adding, “Our Action Plan’s six key areas present a coordinated response and we believe align with the intent of her recommendations—and covers off 95 percent of them.”

Carter now flips back and forth through this health ministry 10-page “Action Plan.” There are some good pledges, like creating a seniors advocate as the ombudsperson recommended. But for the most part the document is filled with changes actually made years earlier, and broad, vague proposals like “Ensure the protection and safety of seniors through consultation and the development of a provincial elder abuse prevention, identification and response strategy by December 2012.” It’s further puffed up with a two-page introduction and large pictures. Apparently aiming for a diplomatic but honest reply, Carter mentions her 176 recommendations and, searching the meagre pamphlet, says dryly, “I have to say…I don’t see all of them.”

It feels for a few moments as if we’re a concerned teacher and principal evaluating a child’s final essay that was plagiarized from a book’s back-cover blurb and expanded into large fonts to try to make it look more substantial. I feel sad and embarrassed for the Liberals, out of their league against the rational firepower of the former Canadian Forces Director of Military Tribunals. But conversely, this pathetic document also seems to epitomize our government’s absolute power, its growing lack of accountability to anyone, and its abject disdain for the public.

Carter refocuses me by summarizing many of the problems in seniors care as a “disconnect” between philosophy and practice. She points, for instance, to public appeals and government pledges in support of helping keep seniors in their homes. “There’s a fair amount of academic study out there, there’ve been reports delivered that say the most cost-effective way, and the way that will make people and their families happiest, is home support,” says Carter. “They’d be happier, you’d be paying less money. So there has to be a reason why this isn’t happening.”

She similarly points to several pieces of legislation developed years ago that would solve some of the problems she found, but which stalled somewhere. She doesn’t think the block is money. “A lot of what we recommend doesn’t cost billions, it doesn’t even cost millions,” says Carter. “It just requires you to rethink and re-approach some stuff, and you can make some dramatic improvements.” She suspects the block is historical inertia and lack of public attention and political will. “For any large organization, including government, there are a lot of other things going on, and so it’s only the things that you focus on that really get pushed forward.”

Therefore, Carter encourages people to look at the ombudsperson’s report online, where a search tool can quickly isolate topics. “If there’s a particular part of the report that resonates with you and you think is important, then the ministry said they want to hear from you,” Carter says. “Let the ministry hear from you.”

Although her tenure as ombudsperson is up for renewal in mid-May, Carter says her office will continue to monitor developments in seniors care.

“We really have an opportunity now in the next little while to focus on this and make it a system that we can all understand and be satisfied is working fairly and reasonably,” says Carter. “And if we take that opportunity, I think it’s going to be great…If we don’t, then there’s going to be a lot of us who may be looking at the report and seeing the same issues down the line.” And eventually, she observes, we’re all going to have a direct, personal interest in having a good seniors care system.

Rob Wipond has been a freelance writer of magazine features, news articles, political commentaries, social satires, theatre and performance art for over two decades. The ombudsperson’s report can be found at www.ombudsman.bc.ca.