Canadian Lawyer

July/August 2020

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22 www.canadianlawyermag.com FEATURE LONG-TERM CARE Miller and Meadus, however, say that the stories emerging from these homes during the pandemic are indicative of system-wide failings. Meadus notes, for example, that, in 2019, after scaling back their annual resident quality inspection programs, the Ontario Ministry of Health only inspected nine of the province's more than 600 long-term care homes. May says he sees similar issues around institutions and professional regulation in Alberta. He says that, despite the issues in Ontario, both Ontario and B.C. have at least streamlined their professional regulation. In Alberta, he says, there is an acute lack of oversight. For all of the flaws they see in the system, May, Miller and Meadus all acknowledge that Canada's elder care homes have been placed under considerable strain by the pandemic. Miller says that, while she's working to hold the system to account, she's exercising a degree of caution. "I'm being cautious because I do recognize that we are in exigent circumstances. This is an unprecedented situation for almost every human being that's alive on the planet right now," Miller says. "What I'm telling [residents' families] to do and what I would ask people who are concerned about this to do is make sure that they are filing a complaint with the ministry, if it's a long-term care home, or with the retirement homes regulatory authority if it's a retirement home, because that complaint triggers an investigative process." Miller says that the nine investigations conducted in 2019 were all linked directly to complaints. Active family members, at least in Ontario, have the power to initiate some oversight. While Miller and Meadus cite systemic issues for the concentration of COVID-19-related deaths in Canada's long-term care homes and retirement homes, Vaughan stresses that it's the nature of the virus itself that leaves these homes vulnerable. "Long-term care homes care for medically compromised and elderly residents — precisely there should be a much better system in the exact places that we're sending these people," Meadus says. "We're still sending people to places that have four people to a room where infection control processes clearly are not appropriate and where they don't have the proper equipment." Heather Vaughan, an insurance defence lawyer and a partner at Benson Percival Brown LLP, says that, while the concerns raised by lawyers such as Miller and Meadus are valid, they stem from a select few homes that have been hardest hit by the pandemic. "Reports from some facilities are heartbreaking, particularly when family members are prevented from visiting ill loved ones during facility lockdowns. This is complicated by staffing shortages as employees also fall ill to the virus," Vaughan says. "We are seeing the hardest hit facilities in the media, but there are other facilities that are managing well. There are thousands upon thousands of long-term care beds in Ontario. In 2019, [long- term care] homes provided over 75,000 beds for residents." — as she reads whistleblower stories from facilities such as Lundy Manor in Niagara Falls, Ont. and hears confidential stories from families and workers, is that these widespread staffing shortages are being compounded by the outbreak. She says that the system largely employs part-time staff as personal support workers who often need to work at multiple homes to make ends meet. These PSWs have become disease vectors, she says, taking COVID-19 from one home to another. By mid- April, Ontario and B.C. had restricted PSWs from working in multiple homes, but now, Miller says, the staffing shortages in homes will grow more acute. Both Miller and Meadus also see what they believe to be violations of the Long-Term Care Homes Act, largely around the amount of personal protective equipment and an overall lack of pandemic preparedness mandated in the act. Miller says she's heard of homes failing to implement social distancing protocols until as late as April. "Given that we're providing care for frail elderly people who are immunocompromised, PERCENTAGE OF LONG-TERM CARE HOME RESIDENTS REQUIRING EXTENSIVE ASSISTANCE FOR DAILY LIVING Source: Ontario Health Coalition 2019 Long-Term Care Report 85 70 75 2012/13 2013/14 2014/15 2015/16 2016/17 84.7% 82.9% 82.1% 81.2% 79.3%

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