With the threat COVID-19 poses to elderly members of our population, a number of clients have contacted us with questions and concerns about family members residing in long-term care and retirement homes. They are concerned about the numerous outbreaks that have occurred, as well as the reports of understaffing and lack of protective measures.
Cases of COVID in retirement and care facilities
As of April 15th, health officials had reported 114 outbreaks at seniors’ centres in Ontario. One of the worst outbreaks in Canada is at a 65-bed nursing home just north of Peterborough, where 29 residents have died of COVID-19. Almost half of all COVID-19 deaths are linked to long-term care homes and the numbers are expected to rise as a result of the increased risk due to communal living spaces, shared healthcare workers and general physical frailty of the residents. The same concerns apply, perhaps to a lesser extent, to residents of retirement homes, of which 5% have seen COVID-19 cases.
In response to the spread of COVID-19, nursing homes and retirement homes have limited or restricted visitors, and put in place various protective measures, including physical barriers, staff screening and limiting workers to only one facility. Some facilities have been able to hire additional care providers and cleaning staff, while others have faced a shortage of both, as a result of fear of infection among staff members.[1]
Provincial guidelines indicate that anyone being admitted to a long-term care facility, whether from the hospital or a residential setting, should be tested for COVID-19 prior to admission, and isolated for 14 days. However, whether this testing and isolation is actually occurring is not certain.[2]
On April 15th, the provincial government announced an Action Plan that will require screening of all symptomatic residents and workers, and testing of some asymptomatic residents, as well as other measures to contain the spread of COVID-19.[3]
Options in case of infection
Residents who contract COVID-19 may be placed in a separate area of the facility and confined to their room or bed space.
Some families have been advised that long-term care residents will not be transported to hospital if they contract COVID-19. A letter sent by The Glebe Centre, in Ottawa, to families of residents states that “doctors have learned there is no benefit for seniors with COVID-19 to go to the hospital, and they would not survive intensive care”. The Centre indicated that residents would be cared for and made comfortable at the facility.[4]
Currently, there are no provincial directives in place that determine whether or when a resident of a long-term care facility or retirement home will be taken to hospital. It is therefore up to the resident, if capable, or family members, to make the difficult decision to hospitalize the resident or to maintain the resident in the facility. Hospitalization brings risks of cross-infection with other viruses and bacteria, as well as overcrowding and limited personal care. However, some residents would benefit from the medical intervention offered by hospital settings.
Right to Provide Outside Care
Nursing and retirement homes are at liberty to restrict or prohibit non-essential visitors. Essential visitors would be those people who provide basic personal care (feeding, bathing), medical care (diabetes support), or compassionate care (end of life). In early April, a provincial guidance recommended that long-term care homes prohibit access to all visitors except those who are deemed critical to the health of the resident.[5]
Facilities may require visitors to be screened prior to entry, wear protective equipment, and will likely limit the number of residents that may be visited.
Where a facility is experiencing a shortage of personal care workers, there is a question of whether family members may be permitted into the facility to provide individual care to the resident. To prohibit this urgent care may be a breach of the resident’s right to security of the person under the Charter. However, the province is able to enact legislation to override this right where it is in the greater public interest to do so.
Right to Remove Resident
Family members have the right to bring a resident into their homes for the duration of the pandemic. Proper physical, cognitive and emotional support must be maintained and often measures must be put in place for continuous supervision and mobility issues.
The federal government offers some support to family caregivers, including a disability tax credit in the family caregiver credit, both of which reduce the amount of income tax that the resident or the caregiver may have to pay.
Residents of retirement homes generally rent their rooms and are considered to be tenants under the Residential Tenancies Act. These residents may vacate their rooms without consequence, so long as they continue paying rent. In contrast, in provincially subsidized long-term care homes, there are rules with respect to how long a resident may be away from the home. The government announced on April 15th that any resident who is removed from the facility during the pandemic will be put onto a priority list for readmission once the pandemic ends. No readmissions are permitted during the pandemic. No information has been provided as to whether the monthly long-term care fee will be charged after a resident is removed.
Conclusion
Residents of long-term care homes and retirement residences have individual rights and interests that may not align with the policies of the home, or with the procedures suggested by the provincial government. It is anticipated that as this pandemic continues, more and more residents will be affected by the spread of COVID-19. Issues may arise without warning, requiring decisions to be made quickly and with little information provided as to options. Lawyers at Pallett Valo are available to provide timely legal advice to residents and their family members in dealing with any issues that arise during these difficult times.
[1] https://www.thestar.com/news/gta/2020/04/09/desperate-long-term-care-homes-struggle-to-find-staff-as-covid-19-sickens-resident-and-sidelines-workers.html
[2] https://www.woodstocksentinelreview.com/news/local-news/care-homes-face-road-blocks-testing-new-residents-during-covid-19
[3] https://www.ontario.ca/page/covid-19-action-plan-long-term-care-homes
[4] https://www.cbc.ca/news/health/covid-19-long-term-care-1.5519657
[5] http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/LTCH_outbreak_guidance.pdf
Author: Krystyne Rusek, Lawyer