Threats of Civil Claims Add Fuel to the Wild Fire: Protecting Long-Term Care and Retirement Homes Against Legal Liability arising from the COVID-19 Pandemic

Last week, Premier Doug Ford stated that “the reality is, despite our best efforts, we’re dealing with a wildfire at our long-term care homes right now”. His comment was in response to recent statistics which suggest that approximately one in six long-term care homes in Ontario are battling COVID-19 outbreaks. Media articles are reporting that resident deaths in long-term care homes account for roughly 43% of COVID-19 deaths in the Province. Many of the articles are quick to judge and point fingers.   

Provincial health officials are now coming under heavy fire for not taking faster and more aggressive measures to protect vulnerable seniors living in our long-term care homes and retirement communities and to protect staff. At the same time, criticism has also been levied against the Province for issuing emergency orders which allow long-term care homes and retirement homes greater flexibility in taking any reasonably necessary measures to respond to the pandemic, citing concerns of compromised resident care.  And the blame game has not stopped there.

Some personal injury lawyers and other advocates are suggesting that long-term care homes and retirement homes should have expected and better prepared for the COVID-19 crisis. A summary of their allegations include: understaffed homes, shortages of personal protective equipment, lack of training for frontline workers, failures to implement proper social distancing procedures, relaxed charting, and that care staff performing tasks outside of their normal roles during the pandemic have unreasonably exposed residents to COVID-19. They are quick to allege negligence and thereby, whether intentionally or not, erode trust in frontline workers and managers who need support at this moment more than ever. Some of the commentary is grounded no doubt in a genuine concern for the safety and security of our elderly population but some, quite frankly, comes across as motivated by sensationalism and self-interest.

The stark reality is that some long-term care homes were already experiencing a staffing crisis long before the COVID-19 pandemic was declared. The Final Report of the Long-term Care Homes Public Inquiry which was released on July 31, 2019 made various recommendations, including encouraging the Ontario government to take steps to promote the long-term care sector as a career choice. It is entirely in the public interest that current and future health care workers and managers view long-term care as a rewarding and respected career path. Having acted as counsel at the Public Inquiry, we have been closely following the response to the recommendations. To date, in our view, not enough has been done at the provincial level to make working in the seniors’ sector a significantly more desirable choice. Bashing the sector in the midst of the COVID-19 pandemic will only exacerbate this problem.  

Of course, there will be a time for reflection and critical analysis – for a hard look at what worked and what didn’t and how everyone in the system, from government to licensees to suppliers, could do better. Right now, we need to support the tireless efforts underway to care for residents. Operators and staff at long-term care homes and retirement communities should not be forced to address the crisis worried that their every move is being watched by lawyers ready and waiting to point fingers and start lawsuits. Unfortunately, based on media reporting, long-term care homes and retirement communities should anticipate civil claims and complaints to regulatory authorities against them when the crisis abates. In our view, there are some basic steps which can be taken now by homes which will help, and which will not distract from the immediate goals of addressing the pandemic and protecting residents and staff. Here are some suggestions:

1. Show that you are keeping on top of, communicating, implementing and adhering to applicable government orders, directives and guidance documents relating to COVID-19.
2. Follow key statutory requirements under the Long-Term Care Homes Act, 2007 and the Retirement Homes Act, 2010, including infection and prevention control protocols.
3. Record as best as possible compliance with government orders, directives, guidance documents and statutory requirements, including as needed for resident charting.
4. Communicate openly and honestly with residents, substitute decision-makers and families to help address anxiety in these truly difficult circumstances. The media has primarily focused on failings and thereby has exacerbated tension and anxiety.
5. Collaborate with industry associations (i.e. OLTCA and ORCA), regulatory bodies (i.e. the Ministry of Long-Term Care, the RHRA and professional Colleges), Public Health, legal advisors and with one another as needed to deal with issues as they arise.

If you have any questions about COVID-19 and your home, please contact David Golden or Lisa Corrente. For more information about dealing with COVID-19, please visit our COVID-19 Resource Centre.