Canadian Lawyer

July/August 2020

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 21 care, including a nurse repeatedly confusing milligrams and millilitres while administering drugs — a tenfold difference in volume. When May and his family tried to intervene, he says they were met with outright hostility from the facility's staff. May says he and his family experienced both the failures of a single facility and an "institutional betrayal" where the system failed to ensure even a peaceful passing for his father. "In the midst of all this, my father died," May says. "Now, during the COVID-19 pandemic [in care homes], the failings that I'm reading about and hearing about are the same failings that happened to us." As tragic stories emerge from many of these homes, some lawyers are taking an opportunity to push for systemic changes. Personal Injury lawyers are using individual cases and class action suits to highlight systemic issues. Lawyers for advocacy groups are campaigning for greater family involvement and raising questions around funding and staffing issues. May has expanded his practice, taking on work around professional regulators that govern the nurses, personal support workers and physicians working in these homes. Across these practice areas, many lawyers want to see a broad public inquiry after the pandemic has passed, asking if the system did fail and, if it did, why? Melissa Miller sues nursing homes. The Toronto-based personal injury lawyer and partner at Howie Sacks and Henry LLP pursues cases, from Ontario to B.C., around breaches of the standard of care in long-term care homes, retirement homes and assisted-living facilities. She says that, in Ontario, where much of her practice is focused, publicly funded long-term care homes are held to a strict standard of care, defined by an immense and detailed piece of legislation, the Long Term Care Homes Act. "The Long Term Care Homes Act has very beefy regulations, covering everything from how the home should be run to the resident's care plan, which is the single most important document in a resident's medical file, and it covers everything from their dental care, their diet, to transferring toileting medication, religious and cultural needs. You name it. Most of the cases that I see involve a breach of that care plan," Miller says, "In what I would call regular type of negligence, residents aren't getting the level of care they need, basic things like enough water and food . . . that's completely as a result of understaffing. You've got already understaffing, and then you add COVID-19." Another lawyer, Jane Meadus, the institutional advocate at the Advocacy Centre for the Elderly, says that, in cases of negligence she's examined related to COVID-19, she's seen both violations of the Long Term Care Homes Act and situations arising from gaps in the existing legislation. She says that, in Ontario, at least, the system allows homes a significant degree of latitude in how they meet the care standards set out in the act. The policies that homes write freely for themselves, she says, often are not appropriately reviewed. For example, in normal circumstances, the act always requires a home keep one registered nurse on staff. However, there is no set staff- to-resident ratio. That one RN could be monitoring a 20-bed facility or a 400-bed facility. Miller says her concern during the pandemic "Now, during the COVID-19 pandemic [in care homes], the failings that I'm reading about and hearing about are the same failings that happened to us." Lawyer Collin May LONG-TERM CARE DIRECT CARE WORKED HOURS PER RESIDENT PER DAY, ONTARIO Source: Ontario Health Coalition 2019 Long-Term Care Report 3.5 3.0 2.5 2.0 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2.81 hours 2.84 hours 2.78 hours 2.95 hours 2.91 hours 2.93 hours 3.02 hours 2.29 hours 2.65 hours 2.66 hours 2.71 hours

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