LONG-TERM CARE HOMES AND COVID 19 – THE DUTY TO PROTECT

As the COVID-19 situation in Ontario continues to develop, there has been an alarming number of COVID-19 related deaths at long-term care homes in the province. As of April 22, 2020, 30 residents have died at one Toronto long-term care facility alone.¹ “We’re dealing with a wildfire at our long term care homes,” Ontario Premier Doug Ford said Tuesday [April 14, 2020], promising more funding, testing and equipment to assist staff looking after seniors.² Ford has also ordered employees of long term care homes to only work in a single facility to help limit possible spread of the virus between homes.

Long-term care homes are home-based health care facilities designed for adults who need access to on-site 24-hour nursing care, frequent assistance with activities of daily living, and monitoring for safety or well-being. They are also known as nursing homes, charitable homes, or municipal homes for the aged.

Ontario’s Long-Term Care Homes Act, 2007 (“LTCHA”) and Ontario Regulation 79/10 (the “Regulation”) made under the LTCHA came into force on July 1, 2010. The new LTCHA and the Regulation replace the Nursing Homes Act, Homes for the Aged and Rest Homes Act, the Charitable Institutions Act and the regulations under those acts.

All long-term care homes are licensed or approved and funded by the Ministry of Health and Long-Term Care and governed by the LTCHA. Long-term care homes are run by privately and publicly owned companies, non-profit/charitable organizations, and municipalities. These organizations own the buildings and are granted term licenses and funding by the government to operate long-term care homes. From the government’s perspective, long-term care provides more support and services than can be provided through home care, and less expensively than in hospital. Ministry of Health and Long-Term Care inspectors ensure compliance through unannounced inspections and legislated authority.

REGULATION OF LONG-TERM CARE HOMES AND INVESTIGATION OF COMPLAINTS

Pursuant to section 19(1) of the LTCHA, every licensee of a long-term care home is under a duty to protect residents from abuse by anyone and shall ensure that residents are not neglected by the licensee or staff. A “licensee” means the holder of a licence issued under the LTCHA, and includes the municipality or municipalities or board of management that maintains a municipal home, joint home or First Nations home.³ “Neglect” means the failure to provide a resident with the treatment, care, services or assistance required for health, safety or well-being, and includes inaction or a pattern of inaction that jeopardizes the health, safety or well-being of one or more residents.⁴

Section 3 of the LTCHA sets out the Residents’ Bill of Rights, which addresses residents’ personal well-being and safety and includes the privileges, choices and protections available to all residents of a Home. Some of the rights set out in this section are supported by further requirements in the LTCHA and the Regulation. The Residents’ Bill of Rights may be enforced as though the resident and the Home had entered into a contract in which the Home agreed to fully respect and promote all of the resident’s rights. The LTCHA, the Regulation, and any agreements between the Home and the Crown or between the Home and the resident must be interpreted in a way that advances the respect of the resident’s rights.⁵

Sections 23 to 28 of the LTCHA and sections 103 to 106 of the Regulation sets out the requirements for reporting, investigating and handling complaints, including complaints of abuse and neglect of a resident. Every alleged, suspected or witnessed incident of abuse of a resident by anyone or neglect of a resident by the home or staff that the home knows of, or that is reported to the home, must be investigated immediately. The home must take appropriate action to respond to every incident. The home must report to the Director of Long-Term Care the results of every investigation into the above alleged, suspected or witnessed incidents, and must report on the appropriate actions taken to respond to such incidents. The report must be made as required by the Regulation.

Further, any person who has reasonable grounds to suspect that abuse or neglect has occurred in a long-term care home may report the suspicion and the information to the Director of Long-Term Care. If the Director receives information from any source indicating improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident, the Director shall have an inspector conduct an inspection or make inquiries for the purpose of ensuring compliance with the requirements under the LTCHA.⁶ Once a complaint is submitted, the Ministry will take steps to make sure that the home is following Ontario’s laws for long-term care homes. The home could be inspected, if there’s reason to believe it is breaking these rules. A licensee who is found to be in breach of their duty to protect residents from abuse and neglect is guilty of an offence, and for a first offence, is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than 12 months, or to both.⁷

If your long-term care facility has suffered a COVID-19 outbreak, you may be subject to a civil lawsuit. Such lawsuits may take the form of individual suits on a case-by-case basis or may be in the form of a class-action lawsuit. In either event, a claim of negligence would be brought where a long-term care home has failed to meet the standard of care they owe to their residents which is further codified in the LTCHA. For example, in Quebec, a class action lawsuit application has been filed against a government-run residence, where at least 69 residents have died from COVID-19. In that case, the applicant is alleging the Montreal-area long-term care home acted negligently by forcing two employees with COVID-19 symptoms to remain at work⁸, by improperly isolating residents, and by failing to provide protective equipment to employees.

HOW WE CAN HELP

Chand & Co. is a boutique law firm at the forefront of the civil litigation and regulatory field, with offices in Toronto and Ottawa. The lawyers at Chand & Co. are highly experienced at representing individuals and businesses in civil, regulatory, and criminal matters before both the Superior Court of Justice and the Ontario Court of Justice. If you or your facility are affected by a COVID-19 outbreak in a long-term care home, call us today at 416.583.2377 and let our expertise work for you.

Sources:

¹ https://toronto.ctvnews.ca/list-of-long-term-care-and-retirement-homes-impacted-by-covid-19-in-gta-1.4899401
² https://nationalpost.com/news/huge-leap-in-covid-19-fatalities-at-toronto-nursing-home-but-public-health-officials-wont-share-outbreak-data
³ Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s.2.
⁴ Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, O. Reg. 79/10: General, s.5.
⁵ http://health.gov.on.ca/en/public/programs/ltc/docs/ltcha_guide_phase1.pdf
⁶ Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s.25(1).
⁷ Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s.182(1).
⁸ https://nationalpost.com/pmn/news-pmn/canada-news-pmn/quebec-long-term-care-home-hit-with-class-action-after-56-residents-die-of-covid-19