PART IX - OLA REVIEW: HEALTH AND NURSING HOMES (PROPOSED AMENDMENTS)
A. Health Services
Health care facilities play a vital role in the maintenance and development of official language minority communities. They are not mere public service points, they are true institutional hubs for these communities. For members of these communities, they are a reflection of their identity. They perform a symbolic function and that is their value. Although health care facilities are not places of socialization, and people do not usually stay in them for long periods of time, they are full of symbolic meaning that have a real effect on people's thinking, attitudes, feelings and motivations.
Access to health services in French is of concern to Francophone communities throughout Canada. Studies show that language can be a barrier to accessing quality health services[1]. This is even more concerning when combined with research that shows how language is highly significant in the delivery of health care services. Lack of access or limited access is highly detrimental to the vitality of these communities. Hence the importance of ensuring equal quality service in both official languages in all areas of health services.
In Lalonde v. Ontario (Health Services Restructuring Commission), the Ontario Court of Appeal expressed the opinion that the Montfort hospital was an asset for the francophone community of that province. In overturning the decision of the Ontario Health Services Restructuring Commission, which had proposed the closure of the French-language Montfort Hospital, the Court wrote:
"Montfort has a broader institutional role than the provision of health care services. Apart from fulfilling the additional practical function of medical training, Montfort’s larger institutional role includes maintaining the French language, transmitting francophone culture, and fostering solidarity in the Franco-Ontarian minority.”[2]
Over the past few decades, there has been a growing body of research on the impact of language barriers in health care. The research has increasingly highlighted the impact of these barriers on access to health care, on patient safety and on the quality of care provided. It also revealed that the importance of language in health care is generally not well understood and that there are still many misconceptions about how to overcome the barriers that language may pose. Many administrators, service providers and health professionals are unaware of the risks to patients of not properly addressing the concerns posed by language barriers, and they continue to view the provision of health services in both official languages as no more than an accommodation and not as an essential service.
As a result of this lack of understanding, many health care institutions continue to provide services to the official language minority community in ways that pose risks to the patient. The most common misconception is that if a patient speaks some English, they can be served in that language without problem. Yet research clearly shows that the risk of miscommunication is often very high in these cases. The reason is simple: there is a presumption, which unfortunately can be false, that the French-speaking patient who speak English understands without difficulty all the linguistic nuances of what the health care professional is explaining to them.
One misconception that is all too common in New Brunswick is that because francophones are bilingual, access to health services does not present a barrier to them even if those services are offered in English. It is true that most francophones in New Brunswick are bilingual, but many bilingual people who interact in English on a daily basis may find themselves lacking in English in situations of emotional stress or crisis, to the point where they are unable to understand what the health professional is saying. This can be difficult to understand for an English speaker who has never experienced it. Being forced to communicate in one's second language in a crisis situation can increase stress and discomfort. Since health care is generally provided in a stressful or crisis environment, language becomes an important consideration.
It is with this understanding that the issue of official languages in health care must be considered.
A. The Official Languages Act and Health
Sections 33 and 34 of the Official Languages Act deal with official languages and health services. These sections provide:
33(1) For the purposes of the provision of health services in the Province and notwithstanding the definition of “institution” in section 1, an institution in sections 27 and 28 refers to the network of health establishments, facilities and programs under the jurisdiction of the Department of Health or the regional health authorities under the Regional Health Authorities Act.
33(2) When establishing a provincial health plan under the Regional Health Authorities Act, the Minister of Health shall
(a) ensure that the principles upon which the provision of health services are to be based include the delivery of health services in both official languages in the Province, and
(b) consider the language of daily operations under section 34.
34 Subject to the obligation to serve members of the public in the official language of their choice, section 33 does not limit the use of one official language in the daily operations of a hospital or other facility as defined in the Regional Health Authorities Act.
The wording of subsection 33(1) of the Official Languages Act leaves me wondering about the true intent of legislators. Is it really the intention of the Legislature to narrow the scope of the word "institution" in the context of health care facilities?
The word "institution" is defined in section 1 of the Official Languages Act as follows
"institution" means an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant-Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of Her Majesty in right of the Province or to be subject to the direction of the Lieutenant-Governor in Council or a minister of the Crown.”
The definition of "institution" in section 1 is, in my view, broad enough to encompass all health facilities[3] in the province, including the two regional health authorities and hospitals.
However, subsection 33(1) states that, for the purposes of providing these services to the public, it is the “network” that must provide services in both official languages. That suggests that the intention of the Legislature was, for the purposes of sections 27 and 28 (language of service and communication), to impose no direct obligations on health facilities, installations and programs under the jurisdiction of the Department of Health or the Regional Health Authorities, but to impose these obligations only on Horizon and Vitalité networks. Furthermore, section 33(1) makes no mention of either active offer (section 28.1) or posting (section 29).
This would mean that health care facilities, facilities and programs, which obviously include hospitals, would not have obligations under sections 27 and 28 (language of service and communication), but would have obligations under sections 28.1 (active offer) and 29 (signs).
Evidently, subsection 33(1) raises many questions. Is the obligation to provide services in the official languages imposed on the health facilities defined in the Regional Health Authorities Act, or is it imposed only on the two health networks? If this obligation is imposed on the health networks, then does this mean that if a hospital or health center is not able to offer services in both languages, this does not contravene the Official Languages Act, provided that the “network” is able to provide this service in another health facility? Put simply, does this mean that if the Fredericton hospital is not able to offer a service in French, it does not necessarily contravene the Act if the service is offered in both languages in Moncton, since it is the Horizon network that has the obligation and not the health institution? The Fredericton hospital would only have an obligation to make an "active offer" of services and to post signs in both languages, but would have no obligation to actually offer the service, according to this interpretation.
Health care stakeholders and the Office of the Commissioner of Official Languages of New Brunswick have consistently acted as if subsection 33(1) makes no difference, as if these facilities and programs were legally "institutions" under the OLA. If this is the case, then what is the purpose of subsection 33(1)?
Subsection 33(2) of the Official Languages Act says that the Minister of Health, in establishing a provincial health plan under the Regional Health Authorities Act, shall ensure that the principles on which services are based take into account the provision in both official languages, and shall consider the language in which the institution normally operates. The purpose here is twofold. First, it is to ensure that the availability of health services in both official languages is a consideration in the development of a provincial health plan. If a health program can only be offered in one facility, the Minister, in determining the functions of that facility, must consider its capacity to offer a program of equal quality in both official languages.
The second objective concerns respect the usual language of work in an institution under section 34 of the Official Languages Act. This confirms the right of hospitals and other types of health care facilities to use one official language in their daily operations, subject to the obligation to serve the public in the official language of its choice. To my knowledge, only the Beauséjour Regional Hospital Authority, which at the time of the adoption of section 34 operated the Dr. Georges-L.-Dumont Hospital in Moncton, the Stella-Maris Hospital in Sainte-Anne-de-Kent, the Shediac Regional Medical Centre and two units of the Extra-Mural Hospital, took advantage of this provision and designated French as the language in which its facilities normally operated. When it was amalgamated into the new Vitalité Health Authority, this designation remained unchanged and was extended to the Caraquet and Tracadie hospitals and the Lamèque Health Centre. It appears that the other Vitalité hospitals are not affected by this designation.
Section 34 presents certain points to be kept in mind, when read in conjunction with subsection 33(1). We have seen that subsection 33(1) provides that "institutions", for the purposes of sections 27 and 28, means not health care facilities but their networks. Section 34 provides otherwise: a hospital or health facility may, subject to the obligation to serve the public in the official language of its choice, designate a language in which it ordinarily operates. It would therefore appear from this provision that hospitals and health care institutions have obligations under sections 27 and 28 of the OLA. As can be seen, the entire section of the Official Languages Act is ambiguous and should be reviewed and clarified.
I therefore propose that:
- that subsection 33(1) be replaced by a provision that provides that, for the purpose of providing health care in the province, all health facilities, institutions and programs under the jurisdiction of the Department of Health or regional health authorities established under the Regional Health Authorities Act shall ensure that they are able to provide all services to the public in both official languages at all times.
- third parties, including Ambulance New Brunswick, Extra-Mural Services or any other organization providing services to the public on behalf of the Department of Health or Regional Health Authorities established under the Regional Health Authorities Act, must ensure that such services are available in both official languages without delay.
Regional health authorities have undergone several structural reforms in recent years, some of which affect the language of service and operations.
For example, the Regional Health Authorities Act states, in section 16, that there will be two regional health authorities: the Vitalité Regional Health Authority and the Horizon Regional Health Authority. Subsection 19(1) provides that Vitalité operates in French and Horizon in English, thus recognizing a certain form of duality in health management. Subsection 19(2) adds that, notwithstanding subsection 19(1), the regional health authorities shall respect the language in which the institutions[4] under their jurisdiction ordinarily operate and shall, through the network of health facilities, installations and programs, provide health services to members of the public in the official language of their choice.[5]
Then subsection 19(3) states that the two regional health authorities are responsible for improving the delivery of health services in French. This is unique in New Brunswick's legislative scheme as it is the only provision that applies to only one of the official languages. It recognizes that French language health services are deficient and that there is a pressing need for improvement in order to achieve substantive equality.
In order to provide a remedy for non-compliance with this provision, I propose:
- That subsection 19(3), which provides that the two regional health authorities are responsible for improving the delivery of health services in French, be incorporated into the Official Languages Act.
B. Nursing Homes
In New Brunswick, services for seniors are governed by the Department of Social Development. Staff of the Department and its Long Term Care Program determine the level of care required by seniors who apply for services. Seniors, sometimes in conjunction with their families, decide whether to go to a home.
After an assessment by social workers or nurses in the long-term care field, seniors choose the most suitable nursing home. Distance and language criteria are acceptable reasons for refusing an available nursing home placement. However, the situation remains problematic for French-speaking seniors in areas where there are few or no French-speaking or bilingual nursing homes[6]. If there are few nursing homes in an area, it is difficult to find a good fit for the senior. Waiting lists for French-speaking homes can be longer, sometimes leading seniors to make choices that are not always linguistically and culturally appropriate for them, because they fear losing their place on the waiting list.
When health care facilities where seniors live do not have French language services, then it is the seniors who must adapt to the language of the facility, not the other way around. A phenomenon that English-speaking seniors in the province do not experience.
Studies show that the effects of aging from a nursing home perspective are primarily disadvantageous to Francophone minority communities.[7] But what are the legal obligations of the Government of New Brunswick to provide services in both official languages in these nursing homes?
The Nursing Homes Act[8] defines a nursing home as " residential facility operated, whether for profit or not, for the purpose of supervisory, personal or nursing care for seven or more persons who are not related by blood or marriage to the operator of the home and who by reason of age, infirmity or mental or physical disability are not fully able to care for themselves."
The operation of these facilities is closely regulated by the Nursing Homes Act. Section 3(1) of the Act states: " Without the prior written approval of the Minister, no person shall incorporate a company for purposes of, or one of the objects of which is, establishing, operating or maintaining a nursing home”. The Act also provides, in subsection 4(4): "The Minister may refuse to issue or renew a licence under this section if he is not satisfied that it is in the public interest..." to do so. The Minister may also prescribe such terms and conditions as he or she considers appropriate in issuing the permit. Section 24 provides that the operator of a nursing home shall not add a building or facilities to a nursing home or alter the facilities or buildings in whole or in part without the prior written approval of the Minister.
The Nursing Homes Act includes provisions relating to the financial assistance that the province may provide to a nursing home. It provides, among other things, that the Minister may, with the approval of Cabinet and in accordance with the regulations, provide financial assistance "to aid and encourage the establishment, operation and maintenance of nursing homes."[9]. It also provides that the Lieutenant Governor in Council may make regulations respecting the licensing, management and operation of nursing homes.[10] New Brunswick Regulation 85-187 under the Nursing Homes Act contains a series of provisions relating to the operation of nursing homes.
(i) Do nursing homes have language obligations?
There is no provision in the Nursing Homes Act that imposes language obligations on the operators of nursing homes with respect to the services that are provided to residents. I am also not aware of any government regulation, policy or directive that would define the obligations of nursing homes that describe themselves as bilingual. Yet we have often heard in recent years that some of these facilities, including Le Faubourg du Mascaret in Moncton, are bilingual facilities, but it is difficult to say what this means. In the case of Le Faubourg du Mascaret, we are told that the contract between the company managing the institution and the Université de Moncton contains provisions concerning the linguistic character of the institution. If this is the case, it does not give rights to the residents, but to the Université de Moncton, which if the clause is not respected, would have to take legal action to obtain compensation. Is the Université de Moncton ready and able to ensure that this provision is respected? I doubt it.
Why are there no provisions in the legislation that give language rights to residents of these nursing homes? Is it not true that under the Nursing Homes Act, the provincial government, through the Minister of Social Development, monitors the operation and management of nursing homes. Could it not then be argued that these facilities, given their organic and financial relationship to the provincial government, though privately owned, are institutions of the government of New Brunswick, in the same way as municipalities, for example, and that therefore language obligations under the Charter and the Official Languages Act apply to their operations?
I am not convinced of the merits of such an argument and am not prepared to conclude that these facilities are institutions within the meaning of the Official Languages Act or the Charter. However, this does not mean that they do not have linguistic obligations.
Nursing homes, while not strictly speaking institutions of the province, are third parties that provide services on behalf of the province or its institutions and therefore fall within the definition of section 30 of the Official Languages Act. Therefore, they are required to meet the obligations under sections 27 to 29 of that Act. Since the province, under the Constitution Act, 1867, is responsible for "the establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions", it is constitutionally responsible for these homes and the care of seniors in them. However, the province has decided, by law, to entrust this task to private institutions. However, by doing so it cannot abdicate its linguistic responsibilities.
It is important to recall that on March 24, 2011, the Association francophone des aînés du Nouveau-Brunswick (AFANB) filed a complaint with the Office of the Commissioner of Official Languages of New Brunswick expressing its concerns about the absence or inadequacy of long-term care services for francophone seniors in certain regions of New Brunswick.
A similar complaint had been filed by an individual in 2008. The Commissioner of Official Languages, Michel Carrier, had then concluded that nursing homes are part of the private sector and are not institutions within the meaning of the Official Languages Act. He had also concluded that the Act did not provide that these institutions were officially mandated by the provincial government to provide services to the public and that section 30 of the Official Languages Act did not apply to these institutions.[11]
Following the 2011 complaint, the Office of the Commissioner considered the findings of a study on the language capacity of nursing homes in New Brunswick prepared by the Canadian Institute for Research on Linguistic Minorities, and of a legal analysis submitted by the AFANB. Contrary to the conclusions in his 2008 report, he concluded in 2011 that: (Translation)"There is no longer any doubt that the Government of New Brunswick, through the Department of Social Development, plays a significant role in the area of nursing homes [12]" [my emphasis]. He added that the Department of Social Development is, at the very least, "an active observer" in this area[13]. Since the Department is responsible for the administration and enforcement of the Nursing Homes Act, it has indisputable authority in the operation and management of these facilities.
The Commissioner of Official Languages notes that the provincial government's interest and concern for the situation of seniors is clear. He notes, among other things, that the Department's website outlines the mandate of the Home Services Branch in the following terms:
"The Nursing Home Services branch is responsible for the planning, design, monitoring and inspection of the services provided to residents in nursing homes. This branch ensures the safety of residents through the licensing and monitoring of nursing homes, liaises with nursing homes and the NB Association of Nursing Homes on relevant issues and provides professional and program advice to directors of nursing homes”.[14]
Commissioner Carrier adds:
(Translation) "According to a November 17, 2012 article in Fredericton's Daily Gleaner titled "Nursing Home Association Urges Solution Unique to Province", the New Brunswick Association of Nursing Homes believes that "it's time New Brunswick creates a model for aging-care that will uniquely address this province's needs”.
(Translation)“There are many components to consider, but in our view, bilingualism remains a critical component of New Brunswick's uniqueness. As such, language should be an unavoidable factor in the various levels of nursing home management in our province[15] [emphasis added]."
In July 2018, the Office of the Commissioner of Official Languages released another report regarding services in nursing homes. In this report, Commissioner d’Entremont concluded that nursing homes are third parties within the meaning of section 30 of the Official Languages Act, given that nursing homes in New Brunswick are closely regulated by the province, as evidenced by the following:
- the establishment and operation of nursing homes are governed by the Nursing Homes Act, and Regulation 85-187
- admissions to nursing homes must be approved by the Department of Social Development
- nursing home residents with low income are subsidized by the province
- the province provides financial assistance to facilitate and encourage the establishment, operation and maintenance of nursing homes, under the Nursing Homes Act
- the Department of Social Development manages the size, structure and overall operations of nursing homes and ensures that nursing homes comply with the Nursing Homes Act, Regulations and departmental standards and policies. (New Brunswick Department of Social Development website; accessed February 14, 2018.)
This decision by the Commissioner is based on the fact that the Province of New Brunswick has an obligation to ensure that nursing home residents can receive services in the official language of their choice.
With these comments in mind, a strong argument can be made that section 30[16] of the Official Languages Actapplies to nursing homes because of their relationship to government. It is therefore incumbent upon the government, including the Department of Social Development, to ensure that services provided by nursing homes are available in both official languages. Also, for reasons I set out below, I believe the province has a positive obligation to clarify the situation and ensure that the language rights of seniors living in nursing homes are respected.
(ii) Does the province have a positive obligation to act?
While nursing homes as private entities do not have direct linguistic obligations, this does not mean that the provincial government does not have a linguistic responsibility in regard to them. In his report, the Commissioner of Official Languages Carrier concluded that the lack of a clear policy or assumption of responsibility by the provincial government on this issue "fuels the problem observed’. He emphasized the importance of making language a priority in elder care. He added that any move in this direction would constitute a positive measure within the meaning of section 3 of the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick[17]. He called on the provincial government to commit to take the measures necessary to ensure that Francophone seniors have equal access to nursing home services in their official language.[18] To date, the provincial government has not taken action as a result of the recommendations of the Commissioner.
While I do not conclude with certainty that nursing homes have language obligations, I do draw certain conclusions from the analysis.
First, since the province has exercised its constitutional jurisdiction over the care of the elderly through private facilities, these are third parties within the meaning of section 30 of the Official Languages Act. As third parties providing services on behalf of the province, they must provide those services in a manner consistent with the government's linguistic obligations.
Second, the province cannot escape its obligations under the Charter, the Official Languages Act and the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick simply because the activity within its jurisdiction is being carried out by a third party. It is obliged to adopt legislation or regulations providing for positive measures to respect the equality of the official languages and the equality of the official language communities with respect to the delivery of services to seniors. It must ensure that it provides everyone, regardless of their official language, with access to nursing homes that offer services in their language. If legislative changes are required to achieve this goal, then New Brunswick must take the necessary steps.
I therefore propose the following amendments to the Official Languages Act
- that the Act provide that the province has an obligation to ensure that nursing homes provide services in either official language in all health regions of the province to meet the needs of both official language communities.
- that the government adopt the necessary measures to clearly define the linguistic obligations of nursing homes that wish to define themselves as bilingual and that these obligations ensure equal treatment of the two official languages and that the government ensure that the designated bilingual facility has separate space where cultural, recreational or educational activities can take place in either official language
- that where possible, the government promote the establishment of linguistically homogeneous nursing homes.
- that in placing a person in a nursing home, consideration be given to the person's language preferences.
[1] Sarah Bowen, Barrières linguistiques dans l’accès aux soins de santé, Ottawa, Health Canada, 2001, p 1, online: <http://www.francosante.org/documents/sarah-bowen-barrieres-linguistiques.pdf>.
[2] Lalonde v. Ontario (Commission de restructuration des services de santé), 56 OR (3d) 577, [2001] OJ no 4767 (QL) (CA), para 71.
[3] The word « facility » is defined in the Regional Health Authorities Act, RSNB 2011, c. 217 as “a building or premises in or from which health services are provided”.
[4] We refer here to section 34 of the OLA.
[5] The wording here is similar to subsection 33(1) of the OLA.
[6] There is no definition of what is meant by bilingual homes. Is it a nursing home that offers all its services in both official languages on an equal basis? The province has never defined this term, yet it is commonly used.
[7] Éric Forgues et al., «La prise en compte de la langue dans les foyers de soins pour personnes âgées» (2012) Canadian Institute for Research on Linguistic Minorities, Moncton, p 19 [Forgues et al.].
[8] RSNB 2014, c 125.
[9] Ibid., art 22(2).
[10] Ibid. art 31.
[11] Office of the Commissioner of Official Languages, Investigation Report (November 2012), File no 2011 – 1389, p 6 [Report COL].
[12] Ibid., p 14.
[13] Ibid., p 15.
[14] «Nursing Home Services (Unit)», online: Department of Social Development < https://www2.gnb.ca/content/gnb/en/departments/social_development/contacts/dept_renderer.140.html#mandates >.
[15] Report COL, supra, p 16
[16] Section 30 of the OLA states: « When the Province or an institution engages a third party to provide a service on its behalf, the Province or the institution, as the case may be, is responsible for ensuring that its obligations under sections 27 to 29 are met by the third party. »
[17] RSNB 2011, c 198.
[18] Report COL, supra, p 14.