Thousands of COVID deaths have highlighted systemic flaws in elder care, say lawyers
In mid-April, Dr. Theresa Tam announced that half of Canada’s COVID-19 deaths had stemmed from outbreaks in long-term care facilities and retirement homes. By May 6, a total of 3,436 long-term care residents and six staff members had died of COVID-19, representing 82 per cent of Canada’s deaths. In Ontario, 300 homes have seen outbreaks. Quebec reported 273 separate facilities with outbreaks before they stopped releasing lists of affected homes on April 30. Ontario Premier Doug Ford has declared that, in his province, “the system is absolutely broken.”
A “broken system” comes as no surprise to Collin May. In 2017, the Calgary-based estates and corporate lawyer’s father died in a nursing home. As his father was dying, May says he saw the failings of a single facility and a wider system firsthand.
In August of 2017, May’s father became unresponsive, aspirated and developed a pneumonia that eventually took his life. May says he and his siblings were only contacted seven days into their father’s unresponsive state.
When he arrived at the home, May says, he observed routine acts of substandard 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 — 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, 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.”
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 the people who are most at risk for negative outcomes should they contract the virus,” Vaughan wrote to Canadian Lawyer in an email. “Isolating residents is extremely difficult when members reside, eat and socialize together within the facility and particularly when facilities are at capacity.”
When asked how these homes can defend themselves from lawsuits emerging out of this pandemic, Vaughan stressed that the central liability issue in a tort case will focus on the standard of care. She says the fact that a resident contracted COVID-19 and sustained damages or died won’t be enough for a finding of liability against a long-term care home. In a suit emerging from the pandemic, any question of a breach in the standard of care will include an assessment of whether the home followed government directives and infection control procedures, she says.
While Miller says she’s preparing for defences along those lines in the cases that will emerge, she’s also pushing for a system-wide reassessment, which she hopes will take the form of a public inquiry.
“There needs to be a reckoning,” Miller says, “I'm telling at least the people who are contacting me to make sure that they're in touch with public health and to write to their MPP. That is where we will see a measure of account when this is all said and done.”
Meadus and May echo Miller’s sentiments. May says he hopes for a nationwide inquiry involving all levels of government. He says that his own experience going up against a care home and professional regulators has demonstrated a need for widespread advocacy on behalf of residents and their families who might feel isolated and “bullied” by the systems that don’t want to hear their complaints otherwise.
Meadus says she hopes the scope of the inquiry is broad enough, since the law gives any commission that could be established to conduct a public inquiry a significant degree of latitude in setting its scope. The last time such a commission was formed was in the wake of the conviction of Elizabeth Wettlaufer, a serial killer who murdered residents of care homes while working as an RN, and Meadus says that the scope of that commission’s inquiry was too narrow and focused on the murders themselves without asking broader, systemic questions.
Vaughan says long-term care homes and the appropriate government and regulatory agencies will need to review what happened in these facilities during the pandemic. She says, however, that the findings of the inquiry around the Wettlaufer murders were that, despite the system’s vulnerabilities, the regulatory system had strengths that could be built on. She says that any broader inquiry needs to come from evidence-based answers to the question of whether the poor outcomes during this pandemic are particular to individual operators, a matter of chance or the result of a policy failure.
Miller says she hopes that the experiences of the pandemic in these homes aren’t lost in public memory or in the minds of the legal community.
“My hope is that this is not just going to fall through the cracks and get forgotten,” Miller says. “This has really highlighted the serious deficiencies that have existed for years, in fact, decades in our long-term care system. And I really hope that our legislature starts to take a very serious look at this because it requires attention from all sides. It requires attention from lawyers like me who are going to hold the powers that be to account in a lawsuit context, but also from our government, from the public, from the media, everyone. This is sort of a multi-faceted, full [frontal] attack really to look at the system that has been failing our elderly for much longer than COVID-19.”