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What Happened to Residents' Rights? How Blanket Family Bans Violate Ontario's Long-Term Care Homes Act

By Vivian Stamatopoulos, PhD
Associate Teaching Professor, Ontario Tech University

May 11, 2020

 

It has been nearly two months since Ontario’s Chief Medical Officer of Health (CMHO), Dr. David Williams, issued a memo advising long-term care (LTC) homes to ban non-essential visitors, with family members curiously lumped into this categorization. Only family members of residents deemed very ill or dying would be permitted visitation. Last week, I highlighted a handful of pressing problems with this blanket family ban (1), with one issue being its violation of the Long-Term Care Homes Act.

In Ontario, LTC homes must follow the Long-Term Care Homes Act of 2007 and the “Residents’ Bill of Rights” covered under this law (2). Specifically, 27 key rights are set forth that must be followed by every LTC home across Ontario. Moreover, every LTC home must provide a way for residents and others to complain about violations to residents' rights. The ongoing designation of family as “non-essential” visitors and the subsequent confinement of Ontario’s LTC residents reflects a violation of several key rights as outlined below:

11. Every resident has the right to,

  1. participate fully in the development, implementation, review and revision of his or her plan of care,
  2. give or refuse consent to any treatment, care or services for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent,
  3. participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters.

Issue: Many LTC residents have language barriers, developmental disabilities or advanced cognitive decline which requires active assistance from substitute decision-makers. Blanket family bans and the documented poor communication between LTC homes and residents' families during COVID-19 (3, 4) obstructs this right.

14. Every resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference.

Issue: Directly violated by the ban.

15. Every resident who is dying or who is very ill has the right to have family and friends present 24 hours per day.
16. Every resident has the right to designate a person to receive information concerning any transfer or any hospitalization of the resident and to have that person receive that information immediately.

Issue: Despite the caveat for very ill or dying residents to be permitted visitation, many LTC homes are failing to alert families of residents' declining health, thereby blocking this right. News reports of families learning of the grave condition (sometimes even death) of their loved ones from hospital staff post-transfer (5) reveal breaches to rights 15 and 16.

21. Every resident has the right to meet privately with his or her spouse or another person in a room that assures privacy.

Issue: Directly violated by the ban.

27. Every resident has the right to have any friend, family member, or other person of importance to the resident attend any meeting with the licensee or the staff of the home.

Issue: Directly violated by ban unless being afforded remotely (which is unlikely given the previously mentioned communication gaps between LTC homes and families during COVID-19).

Both aggravated by the family ban, but not a necessary condition for it, are the added violations to residents' rights connected to the government’s response to the crisis:

2. Every resident has the right to be protected from abuse.
3. Every resident has the right not to be neglected by the licensee or staff.
4. Every resident has the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
5. Every resident has the right to live in a safe and clean environment.

Unlike British Columbia, Ontario has not fully banned staff from working at more than one residence due to the “giant loophole” allowing temporary workers to continue working in multiple homes (6). This inter-facility staff movement has been flagged as a pivotal match that set ablaze the ongoing “wildfire” burning across LTC homes.

Then there are the added directives issued by Dr. Williams that both enable COVID-19 positive but asymptomatic workers to remain on the job while also restricting family access to residents, both of which compromise resident safety via increased risk transmission and the elimination of a crucial accountability measure against resident neglect and abuse provided by ongoing family involvement in LTC (7, 8, 9).

What’s worse, it has been revealed that the Ontario government has been inspecting some facilities by phone instead of having inspectors physically enter the premises to check on the safety of residents (10). Remote inspections are clearly not an effective measure of identifying and halting ongoing violations to the above-mentioned rights.

The cumulative effect of a bungled provincial response to the LTC crisis has led the Patient Ombudsman to put out a whistleblower call for complaints on April 27, prompted by an onslaught of disturbing allegations from homes “hiding bodies”, to resident neglect and injury to staff being denied access to Personal Protective Equipment (PPE), to COVID-19 positive residents kept in shared rooms with healthy residents (11, 12, 13).

What should residents and their families know?

Residents are not powerless nor are their key care partners. These rights are guaranteed by law and violations can be reported to both the LTC home but also to the Ministry of Health and Long-Term Care, whose on-staff inspectors enforce these rights when someone makes a complaint.

Residents' rights can also be enforced by taking the LTC home to court, or by other means, including the Patient Ombudsman and/or various professional colleges (e.g., The College of Physicians and Surgeons of Ontario (CSPO) or the College of Nurses of Ontario, depending on the nature of the complaint).

In order to demand institutional change from our government, we will need a comprehensive and documented record of all those violations to residents' rights, both pre– and post–COVID-19. It is high time that we hold to account negligent homes and demand that our province steps up to better protect some of our most vulnerable citizens.