The Fine Line Between Custodial and ‘On Call’ Care

In cases involving severe brain injuries, the Assessment of Attendant Care Needs (Form 1) certainly allows for custodial care under Level II attendant care. However, the Form 1 may not necessarily allow for a situation where an insured requires non-custodial attendant care assistance such as a “life line” or “on call” care.

Unfortunately, the recent decision of T.N. and The Personal Insurance Company of Canada does not draw a distinguishing line between custodial care and “on call” care or care on a case-by-case basis. As a result, we are left with a confusing precedent regarding the definition of “custodial care,” how it should be interpreted within the Form 1 and how it should be applied to other cases involving severe brain injuries.

Level II attendant care, within the Form 1, relates to basic supervisory functions and does not indicate a requirement for highly skilled supervisory care. Further, there is a category in Level II for severe brain injuries, which is defined under basic supervisory care as “client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour.”

In T.N., Arbitrator Bayefsky determined that the applicant, who sustained a severe brain injury as a result of a motor vehicle accident on October 29, 2000, was entitled to 24-hour attendant care in order to maintain her “safety, security and emotional support.” The applicant, in this case, claimed almost exclusively under Level II attendant care within the Form 1 where “the client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour.”

However, the type of care needed by the applicant, as described by the applicant herself, her treating medical professionals, by her service providers and assessors was that of “on call” and not in person supervision, and need for access to a “life line” in emergency situations. In addition, it was proposed by the insurer that the applicant had available to her several resources to protect her in the event of an emergency, such as smoke detectors, a lifeline call button and cell phone.

The applicant was capable of responding to emergency situations, even in one instance recalling that when her mother suffered a heart attack in 2002, she assisted in seeking medical attention. Despite the applicant’s ability to respond to emergency situations appropriately, Arbitrator Bayefsky determined that she still required “constant monitoring and assistance to ensure that she neither harms herself nor is harmed by others.”

Although Arbitrator Bayefsky acknowledged that the applicant was not always physically with someone at all times as they have other responsibilities to attend, and was regularly left alone during the day and evenings, such facts were not properly taken into consideration when interpreting and applying whether the applicant would qualify for attendant care within the parameters of Level II attendant care within the Form 1 and, in particular, with respect to needing “custodial care due to changes in behaviour.”

“Custodial care” is not defined by the Statutory Accident Benefits Schedule. The insurer in T.N. provided a medical definition for “custodial care” as obtained from various online sources, all of which defined custodial care as meaning care provided primarily for maintenance of the patient and designed to assist in meeting the patient’s daily activities, including help in walking, bathing, dressing, eating, preparation of special diets, and supervision over self-administration of medication not requiring the constant attention of a trained medical personnel. The applicant in T.N. did not require such services of activities of daily living and mainly needed someone to speak with on a case-by-case basis.

However, Arbitrator Bayefsky concluded that the medical definitions of “custodial care” were not binding, and that “custodial care could well include the type of access to support and monitoring sought by the applicant, given that it is in relation to changes in behaviour due to severe brain injury.”

T.N. is problematic because despite the clear medical definition of “custodial care,” there is no distinction between what services ought to properly be classified as custodial and those of an “on call” variety. Custodial type of care relates to assistance with performing activities of daily living. In the applicant’s case she was able to perform such activities of daily living, but simply needed someone to check in with her from time to time on the telephone or otherwise. She did not need someone with her 24 hours per day, and in fact she was regularly left alone during the course of the day and evening since the motor vehicle accident – despite receiving ongoing attendant care as paid by the insurer during this period.

Therefore, in the context of the Form 1, an applicant who “needs custodial care due to changes in behaviour” must be distinguished between an applicant who needs on-call care due to changes in behaviour. On-call care and custodial care are two separate entities.

Moving forward, assuming there continues to be no distinction between “custodial care” and “on-call care,” the Form 1 may very well be interpreted in an overly broad manner as applying to any and all severe brain injured individuals regardless of their independent capabilities. This could be problematic. Since every case is different with respect to the level and nature of brain injury, the level or need for attendant care would in turn vary.

T.N. is currently under appeal, but in the interim we are faced with a precarious interpretation of “custodial care” as it applies to the Form 1.

Philippa G. Samworth is a partner at Dutton Brock and her area of practice is exclusively insurance defence with a specialty in Accident Benefits. Ms. Samworth also offers mediation and arbitration services. 

Andrea R. Lim is an associate with Dutton Brock and is developing her practice in a variety of insurance defence work, with a focus on first party accident benefits claims.