You’ve seen the news and you know the reality: a large number of those dying from COVID-19 are elderly people in long term care (LTC) facilities throughout Ontario.
This virus is particularly dangerous for seniors, so LTCs have become hot zones of outbreaks: in close quarters, with underpaid and insufficient staffing, and with resources like personal protective equipment (PPE) not always in good supply, I can’t help but think that this was a disaster waiting to happen.
The question that’s been coming up lately is, given these circumstances, if a loved one contracted COVID-19 and died in a care home—or even survived but with long term, serious effects—would you have a case against the facility?
Definition Of Elder Abuse And Elder Neglect In Ontario
At the core of the question of how this can happen, and whether there is a case to be brought against the facility, is “what” exactly is happening.
The term ‘elder abuse’ is the overarching terms used to describe several kinds of abuse.
It is defined by the World Health Organization as: “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.” This definition is referenced on the Ontario government website.
Elder abuse, within the definition and according to the Ontario government, includes several forms of abuse:
- physical abuse – causing injury or physical discomfort
- psychological/emotional abuse – diminishing a sense of identity, dignity and self-worth
- sexual abuse – sexual behaviour directed at an older adult without their full knowledge or consent
- financial abuse – misusing of funds and assets without full knowledge or consent or not in that person’s best interests
- neglect – intentionally withholding or not providing basic necessities or care, because of a lack of experience, information or ability
Sure, you might have a specific situation of an individual PSW—Personal Support Worker—doing something negligent towards someone in their care, for which their employer would be vicariously liable, but the real issue is that many facilities do not have the proper funding and are taking shortcuts to turn a profit.
COVID-19 has brought this issue out into the open, but the reason coronavirus ripped through these homes is that they weren’t run properly to begin with.
How Are Long Term Care Facilities Run?
How LTC facilities are run—or misrun, as the case might be—is at the heart of how these facilities, where families place their loved ones for care, might ultimately be liable for the innumerable illnesses and deaths from COVID-19.
The bottom line? The system is broken. It’s been broken for a long time.
At the base, it’s about valuing our elders. In my family, my mom is in her 80s and she lives independently, but she has a place to go if she ever takes a turn. But that’s not the case for everyone, and the situation intensifies for someone who is less healthy, perhaps with mobility issues, and who is dependent on a PSW to take them to the toilet, to bathe, or to take medication. It’s situations like these where you get unintentional neglect—as distinct from intentional neglect.
I don’t believe that anyone would allow neglect to occur if they knew about it, but it’s an ongoing issue in many facilities.
The standard of care is not being met because there are not enough PSWs to deal with the needs of their clients, and harm is resulting.
If there were more people who were being appropriately compensated, the needs of the individuals in these facilities could effectively – and compassionately – be managed.
My opinion is that it’s hard to lay blame with the PSW who is overworked and underpaid, and since we as a society need to lay it somewhere, I place it squarely at the doorstep of the facility itself.
I have a lot of clients who are PSWs, and I hear the same stories again and again. They feel that they are not treated well by their employers, whether public or private, and in part, that is the result of the fact that they don’t make enough money for the work that they do.
They are not being paid a living wage, so many must work part time in two locations to make ends meet.
Care homes want cheap labour, and don’t want to pay full time benefits. That’s a problem that shouldn’t be allowed.
So, in the middle of a pandemic, there isn’t enough staff to deal with the needs of those living in the facilities, particularly for those clients with high needs such as mental challenges or mobility issues.
It’s easy to blame the PSWs—they are the visible and immediate link to our loved ones living in these facilities—but generally, they are not at the core of the issue. PSWs have serious stress burdens. They are, on the whole, dedicated to their jobs and their clients. They CARE. There is a passion driving them. The PSWs are not the issue; the issue is the facility not having enough staff and training to deal with these challenges.
Do You Have A Case?
First, we must consider the “Reasonable Person Test”.
Did the facility act reasonably with the knowledge they had – or SHOULD have had?
Relatively early in the pandemic, they should have known. Pandemic preparedness should have been on their radar, given the history of this issue in Canada (SARS, for example.)
Then there is the issue of whether they did their best, under the circumstances.
An example of this is the issue of PPE. Did they do the best they could with what they had? You could have a case if they knew about the virus and took no measures to mitigate it. But you would have to prove that. The argument would be ‘had you acted sooner in terms of locking down the home or providing PPE to staff in homes, then there might have been a different outcome’.
Of course, the home could certainly argue that they couldn’t access PPE. That may be a valid reply, but was the home still effective with lockdowns? We must ask if every precaution that they could have taken was taken, or was there complacency?
Admittedly, the situation around COVID-19 changed so quickly, and continues to do so. What was a best practice last week is not recommended this week. This means that mitigation best practices would have had to keep evolving, but did they?
Thankfully, there are examples in Ontario of LTC facilities that made the right decisions, at the right time.
In Kingston, the local public health unit swung into action in the beginning of March, which was early in the pandemic relative to other places, and physically went into care facilities to inspect them, knowing that these environments could be prone to outbreaks.
They were looking for adequate signage, screening, infection control protocols, PPE in adequate supply and a testable outbreak management plan.* To date at the time of my writing this, there have been no major outbreaks and only two positive tests at one location (although the second positive test was later rescinded.)
The Kingston example shows us that it was possible to be proactive and stave off the worst of this pandemic, with preparedness at the forefront. If they were able to do it, the question will have to be, at some point, why others didn’t?