Liability Laws Loosened in COVID Neglect Cases and Little Enforcement Recipe for Deadly Long-Term Care Cocktail

November 11, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

We recently wrote about the provincial government’s new legislation that will protect long-term care homes from negligence law-suits making it very difficult for families of loved ones who have suffered and died due to negligence or abuse in long-term care homes to attain justice.

Now a new report from the Toronto Star has revealed that long-term care homes found in violation of standards and legislation rarely face compliance orders. As we are in the second wave of the COVID-19 pandemic the outlook for residents of long-term care homes is not necessarily a bright one. Staff and residents continue to complain about the quality of care int eh homes, and although the government has announced several new initiatives for improving the quantity and quality of care in the facilities it is now clear that the changes will be timely enough to save lives currently at risk.

Long-term care homes face the highest mortality rates for COVID-19 and the outbreaks in them continue as reported almost daily. Complaints of negligence and abuse are rarely taken seriously and according to the article the enforcement branch is so understaffed as to make enforcement and compliance of orders against homes impossible.

We can only hope that things improve for our most vulnerable citizens. If you have lost someone to negligence in a long-term care home please contact Deutschmann Law immediately and we will help you seek justice.  


Long-term-care homes that violate legislation designed to protect residents rarely face orders to comply from Ontario’s top enforcement official, Star investigation finds

Kenyon Wallace

By Kenyon Wallace Investigative Reporter

Sat., Nov. 7, 2020timer10 min. read

updateArticle was updated 2 days ago

 

Over the course of 14 months beginning in August 2018, government inspectors found that Creedan Valley Care Community, a private long-term-care home in Creemore, Ont., failed time and time again to comply with provincial legislation designed to keep residents safe.

No strategies to respond to residents’ aggressive behaviours. Failing to prevent one resident from physically abusing another. Residents not getting their minimum of two baths a week. Missed deadlines for reporting a staff member’s suspected abuse of a resident.

By the time the province’s top enforcement official — the director of the Ministry of Long-Term Care’s inspections branch — ordered Creedan Valley to address its failures in October 2019, the home had already been cited 67 times by inspectors for failing to comply with the Long-Term Care Homes Act, received 34 orders to comply with the legislation and its regulations, and had been asked to come up with 27 “voluntary plans of correction.”

A Star investigation has found that problems escalated to the director of the inspections branch rarely result in formal orders like the one Creedan Valley received.

Of 99 referrals made by inspectors in the last two years to the director, just seven resulted in director’s orders — additional actions to protect the safety of residents, such as directing a home to cease admissions, requiring the hiring of new management, or revoking the home’s licence.

A referral to the director is made when an inspector identifies serious violations of provincial rules or high-risk situations, and taking further enforcement action is beyond their power. In recent years, director’s referrals have been made in an effort to force homes to perform even basic responsibilities such as treating skin infections, preventing falls, promoting continence and having zero-tolerance policies for abuse and neglect of residents.

The Star found that most homes facing a director’s referral had already received multiple written notices of failing to follow both provincial regulations and compliance orders from inspectors.

“The inspection branch is so weak that the law is literally unenforceable,” said Patricia Spindel, co-founder of Seniors For Social Action Ontario (SSAO), a group of social activists calling for in-home and residential care in the community as an alternative to institutions.

“These operators are let off the hook even after repeated compliance orders and director’s orders. They just go about their business as usual and don’t have to take the inspection service seriously at all.”

The province says most referrals to the director result in compliance, meaning a formal order is not necessary. But the Star found that homes with referrals continue to have compliance problems. And even if a director’s order is made, there is little incentive for homes to comply.

Under current legislation, the government has no power to issue financial penalties against problem homes. And while the Long-Term Care Homes Act allows for the laying of provincial offences charges, the ministry says it is aware of just one case where a home was charged. In that case, from September 2017, a home was charged for failing to immediately report suspicion of “certain matters” to the director, including abuse or neglect of a resident. But the charges were later withdrawn for having no reasonable prospect of conviction.

Between July 1, 2018, and July 24, 2020, inspectors referred Creedan Valley Care Community, which is owned by Sienna Senior Living, a private company, to the director of the inspection branch eight times for issues such as failing to ensure residents were protected from abuse and neglect. Only one other home (Brucelea Haven) had this many referrals during the two-year period.

Of three director’s orders issued to Creedan Valley in that time, the October 2019 order required the home to create a plan to deal with residents’ aggressive behaviours (what the ministry called “responsive behaviours”) after one resident’s repeated verbal and physical aggression toward others. Inspectors found that despite at least five incidents over a three-month period, including an incident in which the resident injured another resident, there was no plan of care to manage the behaviours.

The director also ordered the home to put “strategies and actions” in place to ensure nurses and personal support workers in the home prevented falls and provided skin and wound care. The order included a direction to provide coaching to the home’s executives on how to retain staff and ensure compliance with provincial requirements.

So concerned was the director of the inspections branch with Creedan Valley’s failures to comply with the Act that she suspended admissions to the home, stating in a letter to the Local Health Integration Network on Oct. 25, 2019, that she believed “there is a risk of harm to the health or well-being of residents in the home or persons who might be admitted as residents.”

Despite all this, the director’s order seemed to have little effect. A follow-up inspection in February and March 2020 found the home did not comply with the director’s order from the previous autumn. The penalty? Instead of referring the problem back to the director, inspectors simply issued another compliance order.

Natalie Gokchenian, a spokesperson for Sienna Senior Living, said the care and well-being of the company’s residents and “team members” is “our highest priority” and that it is committed to making sure “that the issues identified through any means are addressed swiftly and thoroughly.”

Problems at the home didn’t end in the spring of 2020. In August, the director issued a mandatory management order requiring the home to appoint someone to take over management of the home. The order cited the home’s failure to comply with numerous requirements since August 2018, including bathing residents a minimum of twice per week and ensuring the home’s staffing plan was consistent with residents’ assessed care and safety needs.

“The licensee’s ongoing and persistent non-compliance is demonstrated by the reissuance of multiple orders; the lack of understanding by the licensee of the compliance issues and the actions required to address and correct these serious issues; the risk of harm to residents in relation to the non-compliance found; and the ongoing instability in the home’s senior leadership,” the order states. “All of these reasons provide the director with reasonable grounds to believe that the licensee cannot properly manage the long-term-care home.”

The ministry did not revoke the home’s licence. In fact, in the past four years, just one home in the entire province has had its licence revoked for non-compliance.

Gokchenian said Sienna has retained a third party to support management of Creedan Valley and that “significant work has already been implemented to ensure we are providing the best possible care for our residents.” This includes additional staff to provide leadership on compliance, as well as clinical services such as nursing and fall prevention, she said. The company is also working with a recruitment firm.

“We are committed to ensuring the residence is in full compliance. With new leadership and stringent processes now in place across Sienna Senior Living, we have taken significant steps to change the way we work and improve our operations,” Gokchenian said.

“We have worked hard to act on concerns that have been identified and we are confident that we will earn back the trust of our residents and their families, whose health and safety remains our highest priority.”

Mark Nesbitt, a spokesperson for the Ministry of Long-Term Care, said in an email that Ontario’s long-term-care home inspections “continue to be the most rigorous in Canada.”

He said the ministry began using a “risk-based inspection framework” in the fall of 2018, a change that led to an 80 per cent reduction of an existing inspection backlog. The approach prioritizes homes with complaints, critical incidents, histories of non-compliance and other risk factors, and subjects those homes to closer monitoring, he said.

“Keeping Ontarians safe — particularly our most vulnerable — continues to be the top priority of the government,” Nesbitt said. “We remain committed to taking every step to protect long-term-care residents, staff and visitors.”

Such an assertion is “nonsense,” according to SSAO’s Spindel.

“What we have in Ontario is a reactive inspection system, not a proactive inspection system, and that’s according to their own senior manager’s testimony,” said Spindel, referring to comments made by a Ministry of Long-Term Care official to the Long-Term Care COVID-19 Commission, the independent commission set up by the province to investigate the spread of the virus in long-term-care homes.

On Sept. 15, Pamela Chou, a senior manager with the Ministry of Long-Term Care’s inspections branch, told the commission that of 2,882 inspections in 2019, 77 were proactive. Most inspections were triggered by critical incidents that occurred in homes and complaints.

“Proactive inspections do take significant amount of resource time (sic),” Chou told the commission.

The ability of the Ministry of Long-Term Care’s inspections system to prevent calamities in facilities became evident in the spring when the COVID-19 pandemic tore through nursing homes, killing more than 1,800. In the midst of Ontario’s second wave, there are currently 521 active resident infections, up from 96 on Oct. 1. The number of homes with active outbreaks sits at 86, up from 44 on Oct. 1. One hundred and thirty-eight residents have died of COVID-19 since the beginning of September.

Despite the province’s assurances that it takes the health and safety of long-term-care residents seriously, it took the director of enforcement 20 months to issue an order to Brucelea Haven Long Term Care Home in Walkerton, a facility that in that time period racked up 75 written notices of non-compliance, 34 compliance orders, 35 orders to create voluntary plans of correction and six director’s referrals.

The order, issued on July 24, 2019, required Brucelea Haven to have a staffing plan that ensured residents’ care and safety needs were met, bring in a consultant to conduct a review of the plan, and provide coaching and mentoring to the home’s administrator and director of care.

The order was issued 12 days after the director suspended admissions to the home, citing “risk of harm to the health or well-being of residents.” Admissions resumed in March 2020.

Inspectors found that significant staffing shortages contributed to the home’s inability to follow provincial legislation and were directly related to the problems that led to the director’s order. Among their findings:

Improper transfers of residents (ie. between wheelchairs and beds) in which only one employee performed the transfers when two were required. One resident died after suffering significant injuries during three improper transfers at the home. The resident’s death certificate noted that falls with injuries were a contributing factor.

Residents were left sitting in soaked underwear after they weren’t taken to the bathroom as per their plans of care.

One resident was bathed only once during a 30-day period. Another went seven days without being washed. Regulations state that residents must be bathed a minimum of twice per week.

Three residents did not receive their time-sensitive medications on time as prescribed.

During a two-month period from Jan. 25, 2019, to March 27, 2019, there were five full shifts and two partial shifts where there was no registered nurse in the home, as per provincial legislation.

In some instances, residents had to wait long periods for assistance with their food, at which point they had to eat their meals cold, or food was taken away before they could be helped.

Adam Ferguson, a spokesperson for Bruce County, which operates Brucelea Haven, said the home is in “full compliance” with the legislation and all associated regulations.

“Bruce County took immediate action after 2018 and early 2019 inspections at Brucelea Haven identified instances of non-compliance. At that time, Brucelea Haven was one of seven long-term-care homes in Ontario to receive a director’s cease of new admissions order,” he said, adding that the county brought in a third party, Primacare Living Solutions, to manage Brucelea Haven in August 2019.

Ferguson said Primacare’s staff are “enthusiastic, experienced, highly trained, professional, compassionate, and, above all, dedicated to serve residents with the dignity and respect they deserve.”

Jane Meadus, a lawyer with the Advocacy Centre for the Elderly, pointed out that even serious issues identified by inspectors don’t necessarily end up being referred to the director of enforcement.

“If you found out your child had been left in a dirty diaper for eight hours at a daycare, and you reported that, that would be a very serious offence. And likely, if (the daycare) had a history of that, they would be shut down. That is an everyday occurrence in long-term care in many places.”

The reality is that operators know the government is unlikely to shut homes down, said Meadus.

“The principles of economics don’t work here because supply and demand would normally get rid of the bad apples, except we don’t have enough supply,” she said. “The government is over a barrel because if you get rid of a home, then what do you do? Where do those people go? We don’t have anywhere for them to go.”

Posted under COVID, Personal Injury, Slip and Fall Injury

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