COVID-19: Long-term Care Homes and Resident Rights

Long-term Care Homes and COVID-19 Pandemic

A staggering number of COVID-19 related deaths in Canada are linked to long-term care homes or facilities. As of April 14, long-term care home outbreaks account for nearly half of Canada’s current COVID-19 deaths and the numbers are climbing. The elderly are especially susceptible to COVID-19.

The pandemic is highlighting the systemic failures of nursing homes that we have seen throughout the country for years. Yet, information is scarce on what is being done to protect our parents and grandparents from this raging pandemic and could more be done to prevent so many fatalities.

Do the elderly and their families have rights during this pandemic?

In Ontario, all institutions that care for the elderly (i.e. nursing homes, long-term care facilities, retirement homes) are subject to the Long-Term Care Homes Act, 2007 or the Retirement Homes Act, 2010. These laws are meant to safeguard residents’ rights; to improve the quality of their care and make these long-term care homes accountable for their practices and procedures. The Bill of Rights contained in this legislation also stipulates that all residents in these facilities have basic rights, including to live in a safe and clean environment and to be free from abuse or neglect. 

However, beyond a general reference to infection prevention, no specific protocols or measures are set out in our current laws on what should be done to prevent an outbreak like COVID-19. There are more questions than answers about key issues:

• Is there enough and experienced staff to care for my loved one? 
• Are sanitation protocols being adhered to or are increased sanitation measures being taken to limit contraction of the virus?
• With these facilities at capacity, are quarantine measures in place for infected residents? 
• Can I move my loved one out of a facility without penalty (i.e. financial, losing space)?
• Why are those residents that have COVID-19 not being moved to hospital?
• What and how much information should I expect to get during the pandemic about my loved one’s health?

Is the Government doing enough to protect the elderly?

Since most long-term care facilities are either privately or provincially run facilities, the Federal Government has little reach to ensure the safety of our elderly during the pandemic. Health Canada has set out some guidelines for these facilities to adhere to, the focus of which is the use of protective equipment (i.e. masks) and screening measures.

Ontario’s Ministry of Health has also set out some guidelines, which shockingly provides that only the most severe cases will be taken to the hospital for further treatment.  Otherwise, the guideline stipulates that if a resident has tested positive for COVID-19, this does not in and of itself warrant hospitalization. 

It is unclear what – if any – of these guidelines are being adhered to by long-term care facilities.  The problem is compounded by the absence of clear requirements on how these homes should function on key issues like minimum staffing, sanitation and quarantine measures.  The potential failure to adhere to certain protocols during the pandemic only increases the risk to long-term care residents and medical and health professionals charged with their care.  This results in undue pressure and increasing risk for our excellent front-line medical staff and support workers who are now tasked to manage the peril of infection for those they care for and for themselves.  They are the heroes of the front lines of the fight against COVID-19.

Is there anything we can do?

Various media outlets have reported for years of the tragic results of under funding, staffing shortages, lack of adherence to government regulations, and failure by the government to provide adequate oversight into the practices of these long-term care facilities.  There are numerous reports already of such homes falling below the acceptable standard of care during this pandemic, leading to sickness and even death of residents trusted to their care.  It is our obligation, as a society, and the affected families, to take action, both political and legal.

Residents of such facilities who have become sick or even worse – have succumbed to the virus – can seek compensation through the legal system.  If a resident’s rights were violated, if the resident was in an inadequate care situation, and this neglect led to their death, a legal claim can be brought against a nursing home or long-term care facility.  Affected families can pursue damages, both compensatory and punitive, in order to correct this wrong and raise the substandard living conditions of some of the most vulnerable members of society.  There are legal options and they must be exercised to ensure that this pandemic does not continue to do unnecessary harm to those we love.