So what is new?
We are happy to announce that we are now able to provide services in Tamil and Arabic.
We are also offering OT and RSW Services in Barrie and in Sudbury.
Galit Liffshiz was interviewed by The Disability Channel. To see her interview, please click here.
Please refer to our website to find out more information.
In this newsletter, Kathryn Decker, our OT, summarized a recent case-law regarding Attendant Care funding in a Future Care Cost report.
Warick v. Diwell 2017 BCSC 68
A recent Supreme Court of British Columbia decision, Warick v. Diwell 2017 BCSC 68 explored allotment of personal care services in future care planning.
In this case, the client was a 52 year old woman who was involved in a serious motor vehicle accident in 2009. Her husband and two friends were killed in the accident. The client suffered serious injuries including a spinal cord injury which left her paralyzed from the waist down.
At the time of the decision she was receiving 2.43 hours of care per day from Alberta Health Services (AHS). The client had no control over how many hours were allotted or when the care was provided. AHS was unable to provide an evening care aide to start any later than 9:00 p.m., which restricted her ability to engage in activities outside the home in the evening.
The aides she was sent had no specialized training in monitoring and treating pressure wounds. There was no consistency in the aides and the client estimated that she had more than 50 different aides over the previous six years.
The client’s adult daughter provided approximately 12 hours of care per week, but this care would be discontinued when her daughter was no longer available.
While both parties agreed that the client would require significant personal care that would increase as she aged, the primary issues contested during the trial was the amount of personal care services that she would require and whether the care should be provided by a overseas live-in caregiver or by purchasing blocks of care from a local agency.
The plaintiff medical expert recommended a full-time, live-in care aide with advanced training, such as registered nurse or registered practical nurse. His rationale for requiring a care aide with medical training was that the client’s heavy pain medication had complex and potentially lethal interactions and required careful monitoring.
Additionally, her susceptibility to pressure wounds required ongoing monitoring by a professional with medical knowledge.
The rationale for requiring a full-time care aide was to assist with weight shifting in her wheelchair during the day, turning her at night to prevent pressure wounds, preventing social isolation, monitoring developing health problems and being present in the event of an emergency.
The defense medical expert did not agree that the client required a full-time care aide, as he found that she was able to shift her weight while she in her wheelchair.
He did agree that she required assistance at night to change position in bed. He disputed that she required a care aide with medical training as practical nurses are not trained to monitor for drug interactions and that a “skilled caregiver” can be trained to monitor for pressure sores.
Both the plaintiff and defense prepared Future Cost of Care reports.
The plaintiff FCC report recommended 16 hours per day of care until age 63; 20 hours from age 64 to 69; and 24-hour care from then on, broken down into the appropriate number of shifts.
A live-in caregiver was not recommended as no local agency could provide live-in support. Overnight care was to be purchased in a block of eight hours (even though the client would not need direct care at all times throughout the night) as it is not possible to purchase overnight care for shorter durations.
The defense FCC report stated that the client was independent with activities of daily living except for the care currently provided by AHS and her daughter. It was recommended that an overseas live-in caregiver be hired to replace the care provided by the client’s daughter.
This was recommended as the care model would not need to change as the client’s function declines as there would already be a caregiver in the home, and with consideration that the AHS would contribute to funding of the overseas live-in caregiver.
The plaintiff FCC stated total future homecare to range from $2,235,909.70 - $5,710,636.63. The defense FCC stated total future homecare to be $536,186.
The judge concluded that the client required 13 hours of care per day at present, 16 hours per day at age 64, 20 hours per day at age 70, and fulltime care at age 74.
He found that the care did not need to be provided by a nurse or practical nurse. A trained care aide would be sufficient. He awarded $3,135,902 in future homecare expenses and provided the following rationale for his decision:
Also important is the judge’s finding that hiring a foreign, live-in caregiver, while less expensive, is not always appropriate when client’s care would be better managed by purchasing blocks of time from local homecare agencies.
- The client was receiving very basic care from AHS, which did not approach what a person of ample means would find reasonable to address her in-home health concerns. The aides had no knowledge of her particular condition except what she provided to them, that there was little continuity in who attended over time, especially in the evening, and that the rigidity of their availability inhibited her ability to live with the degree of spontaneity that a person who did not have her accident-related health needs would enjoy. Care that is so rigidly scheduled that she has to forego social activities she wishes to pursue outside the home is deficient for that reason alone.
- The client required care for a three hour period in the morning that would allow her to perform all necessary health-related functions. She required two hours in the late afternoon to address her period of incapacitation due to pain-related exhaustion and the use of painkillers. She required two hours in the evening for end-of-day care.
- With respect to overnight care, the client required six hours (he concluded that overnight care can be purchased in six hour blocks) to assist the client with changing position in bed and to catheterize once overnight.
- The judge was persuaded by the defense medical expert that there is nothing in this situation that requires a RN or LPN, and concluded that it is rather a matter of selecting and instructing the right people, which the client, with assistance, will be in a position to do as the direct user of agency services.
- A live-in foreign caregiver was not appropriate (as the defense ultimately conceded) as the overseas live-in caregiver program once funded by the AHS was no longer available and regardless, the risk of ending up with an unsuitable employee, the administrative burden on the client and the likelihood of having to repeat the process as soon as the worker has access to better jobs in Canada would make this option untenable.
- The best option, both in terms of the amount and quality of required care and the benefit of flexibility, is to purchase blocks of time as needed from an agency.
At GLA we provide detailed and evidence based FCCs and we are guided by recent judicial decisions.
Such legal precedents can provide guidance to us when preparing FCCs by highlighting the client’s right to choose his or her own care providers and to have flexibility in determining when care should be provided.
Galit Liffshiz, MA OT Reg. (Ont.)
Expertise and Experience in Life Care Planning
Designated Capacity Assessor