The Covid-19 pandemic has disproportionately impacted residents in long-term care homes. In Ontario, a total of 2,564 people have died from the novel coronavirus, 1,799 of which are residents in long-term care homes. It is no surprise that older age, complex chronic health conditions and underlying health problems are prevalent amongst residents in long-term care facilities thereby rendering them the most vulnerable demographic to the novel coronavirus. However, these factors alone do not explain the disproportional impact.
Instead, Covid-19 has brought to light longstanding concerns regarding the regulation and the enforcement of policies, procedures and guidelines at long term care homes. Inadequate compliance with the statutory regime that regulates long term care homes, more specifically, the Long-Term Care Homes Act (“LTCHA”), S.O. 2007, c. 8 and Ontario Regulation 79/10, was certainly of concern prior to the rampant Covid-19 outbreaks.
A failure to comply with the LTCHA and Regulation may amount to negligence and a breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. Incidents giving rise to potential negligence against long terms care homes and staff include, but are not limited to, inadequate supervision, monitoring and surveillance resulting in falls; inadequate administration of nutrition and hydration protocols; abuse; and resident-on-resident violence and/or aggression.
There is a real risk that the novel coronavirus will only exacerbate the prevalence of incidents arising from negligence given the existing faltered system. The protection of residents in long terms care homes by stopping the spread of Covid-19 is paramount; however, the discourse must also shift to the prevention of incidents arising from negligence by ensuring compliance with the regulatory regime.
Recent Emergency Orders implemented by the government of Ontario may only provide an illusion of protection and adequate care and defence amid the outbreak of Covid-19. The following provisions of the Emergency Orders are highly problematic and perhaps detrimental to ensuring a safe and secure environment as mandated under section 5 of the LTCHA:
- Long-term care home licensees are not required to ensure that the minimum number of staffing hours set out in the Long-Term Care Homes Act and associated regulation are met for a position, provided all the care requirements associated with that position are met; and
- Long-term care home licensees are not required to meet the training and orientation requirements set out in the Long-Term Care Homes Act and associated regulation, provided they ensure staff and volunteers take measures to ensure resident care and safety.
Emergency Orders aimed at controlling the spread of Covid-19 must not, in practice, simultaneously detract from the fundamental requirements of the LTCHA and Regulation. Ensuring that sufficient and adequate staff is present and that these staff are adequately trained is vital to the safety and wellbeing of senior residents. Compliance with all aspects of the LTCHA and Regulation is critical in preventing injuries and deaths at long term care homes.