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22/Jun/2015
Nursing Home Liability – What the Elderly and Their Children Need to Know (Part Two)

In the previous edition of our blog, we looked at several alarming incidents involving neglect and abuse of residents in nursing homes across Canada, as well as some sobering statistics and reports suggesting such incidents are not that uncommon in long-term care facilities.

There were cases of frail, elderly residents being beaten to death by other residents; dying or being seriously injured after being pushed to the ground by other residents; being sexually assaulted by staff or other residents; suffering serious injuries during improper transfers between their beds and wheelchairs; and being overmedicated, insufficiently cared for and even allowed to go hungry.

We learned there were at least 60 nursing home homicides across Canada between 2001 and 2013, including 25 in Ontario between 2001 and 2011,[1] and that more than 10,000 Canadians in long-term care homes suffer abuse at the hands of their fellow residents each year.[2]

THE LAWS GOVERNING NURSING HOMES
Yet Ontario, in particular, has comprehensive legislation in place to regulate long-term care homes and protect those who live in them.

All Ontario nursing homes, whether they are owned privately or by municipalities or charities, are governed by the Long-Term Care Homes Act, 2007 and Ontario Regulation 79/10. The Act and regulations cover every aspect of the relationship between the government, nursing homes and residents, including admission, the care and services the home is obliged to provide, the creation of resident and family councils, funding, licensing, administration, compliance and enforcement.

The Act includes a Resident’s Bill of Rights, which contains a lengthy list of entitlements such as the right to be protected from abuse; to not be neglected; to be properly sheltered, fed, clothed, groomed and cared for; to live in a safe and clean environment; to not be restrained except in limited circumstances; and to give or refuse consent to treatment, care or services.

Consent is also covered under the Health Care Consent Act, which prohibits doctors and other health care professionals from administering treatments such as antipsychotic medications to nursing home residents without their consent or that of their substitute decision-maker.

Nursing homes are explicitly required under the Long-Term Care Homes Act and Ontario Regulation 79/10 to provide a safe and secure environment for residents, ensure residents are not abused or neglected, and to have written plans of care for residents. The legislation sets out in detail what constitutes both abuse (physical, emotional, sexual, verbal and financial) and neglect.

Taking reasonable measures to ensure residents’ safety, such as eliminating slip-and-fall hazards or undertaking proper maintenance, is also a requirement for long-term care facilities under the Occupiers’ Liability Act.”[3]

ABUSE AND NEGLECT MUST BE REPORTED
The Long-Term Care Homes Act includes comprehensive provisions under which nursing homes must report various categories of incidents as well as investigate and respond to complaints.

It requires nursing homes to have written policies promoting zero tolerance for abuse and neglect. Those policies must also detail how reports of abuse or neglect are investigated and responded to, and homes must make the policies known to all staff, residents and residents’ substitute decision-makers.

There are also mandatory reporting requirements that oblige doctors, social workers, home staff and others to report any improper treatment or care of a resident, abuse or neglect of a resident or unlawful conduct that results in harm or risk to a resident, as well as misuse or misappropriation of a resident’s money.

As well, it is an offence under the Act to discourage or suppress a report of abuse or neglect. In fact, there are specific provisions to protect whistleblowers. Homes are prohibited from retaliating or threatening to retaliate against anyone, including staff, residents and residents’ families, for reporting abuse, neglect or other violations.

Ontario’s nursing homes are required to publicly post Ministry of Health and Long-Term Care inspection reports detailing all findings of non-compliance with the Act, and these are also available for all homes on the ministry’s website at http://publicreporting.ltchomes.net.

ABUSE PERSISTS IN NURSING HOMES DESPITE STRONG LAWS
Even with all these legal protections in place, it’s clear from reported incidents of abuse and the frightening statistics that our frail seniors are not as safe in nursing homes as they should be.

Ontario’s Long-Term Care Task Force on Resident Care and Safety, established by the province’s nursing home associations and advocacy groups in response to media coverage of the issue, summed up the situation in its 2012 report:

“Ontario has strong legislation to support the care and safety of long-term care residents and to prevent abuse and neglect,” stated the task force. “Strong laws are an excellent and necessary beginning but, clearly, they are not enough to eliminate abuse and neglect in all long-term care homes.”[4]

The task force listened to and read submissions from almost 2,000 individuals and groups. The input it received suggested that the top factors leading to ill-treatment and negligence in nursing homes included insufficient staffing, inadequately trained staff, lack of leadership, lack of funding, and an environment or culture where abuse and neglect are overlooked.

“The surveys and submissions highlight the fact that fear is the main reason why resident abuse or neglect might not be reported,” noted the task force in its report. “People are afraid of reprisal if they report abuse or neglect: families are afraid that the care of their loved ones will be compromised; residents are afraid they will not get the care they need and are embarrassed that they will not be listened to; staff are afraid they will be ostracised by management and their colleagues; administration is afraid for the reputation of the home.”[5]

The task force came up with 18 “actions” to improve safety and care in nursing homes, including hiring more staff, better training for staff and management, and providing specialized facilities to deal with residents who have aggression and behavioural problems. It will release a final report in 2015 detailing progress on the recommended actions.

Ontario’s provincial government has taken action, too, particularly in response to extensive media coverage of incidents and problems at nursing homes. Funding for staffing[6] and fire safety[7] has been increased, and the long-term care ministry has vowed to step up inspections and enforcement[8] as well as moving to discourage the overuse of antipsychotics[9] and tranquillizers.

WHAT TO DO WHEN YOUR LOVED ONE IS NEGLECTED OR ABUSED
But change, if it comes, will not come overnight. Nursing home residents and their families need to educate themselves on their rights and remain vigilant to ensure nursing homes live up to their obligations on care and safety, and not hesitate to speak out when things go wrong.

If neglect, abuse or errors do occur, residents, their families or other representatives may complain directly to the home following the written procedures for making complaints that must be posted in all long-term care facilities. Or they can contact the Ministry of Health and Long-Term Care by calling the toll free Long-Term Care ACTION Line (1-866-434-0144). The information will be given to an inspector for follow-up. The line is available seven days a week, from 8:30 a.m. to 7 p.m. A complaint can also be submitted to the ministry in writing, to the Director, Performance Improvement and Compliance Branch, 11th Floor, 1075 Bay Street, Toronto, Ontario, M5S 2B1.

We have prepared a PowerPoint on Elder Law which can be viewed by clicking here.


 

Please contact Richard Bogoroch for further information on how we can assist you or a family member with a nursing home negligence claim.

Richard Bogoroch (rbogoroch@bogoroch.com) 

Bogoroch & Associates LLP

150 King St W #1901

Toronto, Ontario

M5H 1J9

Phone: 416-599-1700

Website: www.bogoroch.com


[1] W5 Research Team, ‘W5 Research: Counting Canada’s care home homicides,’ CTV W5 website, Sept. 27, 2013

[2] Sandie Rinaldo, ‘Nursing home residents at risk: W5 investigation reveals startling national statistics,’ CTV W5 website, Feb. 9, 2013

[3] Section 3, Occupiers’ Liability Act, R.S.O. 1990, CHAPTER O.2, CanLII

[4] Long-Term Care Task Force on Resident Care and Safety report, May 2012, p.3

[5] Long-Term Care Task Force on Resident Care and Safety report, p.40

[6] Ontario Ministry of Health and Long-Term Care, ‘Ontario Enhancing Care and Services for Long-Term Care Home Residents,’ Government of Ontario website

[7] Jesse McLean, ‘Seniors homes in Ontario to get $20M for sprinklers,’ Toronto Star website, Jan. 15, 2013

[8] CBC News, ‘Ontario to double nursing home inspectors,’ CBC website, June 10, 2013

[9] David Bruser and Jesse McLean, ‘Antipsychotic drugs prescribed to seniors at alarming rates, province finds,’ Toronto Star website, Apr. 21, 2014

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