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Bill 218: The death of memory — six months later | Marvin Zuker

Wednesday, April 28, 2021 @ 12:09 PM | By Marvin Zuker

Marvin Zuker %>
Marvin Zuker
What lessons have we learned from the last six months and beyond about Ontario long-term care homes? And perhaps even more importantly, what has the independent Long-Term Care COVID-19 Commission inquiry, chaired by former associate chief justice of the Ontario Superior Court Frank Marrocco, learned?

Appointed pursuant to s. 78 of the Ontario Health Protection and Promotion Act, RSO 1990, c H.7, the commissioners are expected to release their final report this Friday, April 30.

Add to Bill 218 the Crown Liability and Proceedings Act 2019, SO 2019, c7, Sch. 17, which replaced the Proceedings Against the Crown Act, this new legislation is arguably intent on protecting the government from lawsuits such as those for negligence. Then add Bill 161, which received royal assent on July 8, 2020, and which changed the Class Proceedings Act, potentially restricting class action, and what is left in terms of access to justice?

Fortunately the Supreme Court of Canada, and more specifically in recent years former chief justice Beverley McLachlin, has found that s. 96 of the Constitution Act, 1867 protects the right of access to provincial superior courts and that “exempting all government actions from liability would result in intolerable outcomes” — see R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42. “Complete Crown immunity should not be restored by having every government decision designated as one of policy”. “Access to the courts is essential to the rule of law” (see British Columbia Government Employee’s Union v. British Columbia (Attorney General) [1988] 2 S.C.R. 214) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.

When I initially wrote about Bill 218, approximately 1,900 people in long-term care had died from COVID-19. Half of these deaths occurred before April 15, 2020, when the province launched its “action plan” — which was supposed to address what? A lack of protective equipment? A lack of personal support workers? A lack of nurses? Collateral issues such as poor compensation? Poor education and training of existing workers?

Who are those vulnerable, front-line workers, fearful for so long about possibly losing their jobs? Mostly women, single parents and arguably a racialized workforce.

Simply put, there has been little or no transparency, together with inadequate staffing and of course a dramatically lessoned oversight. Has there been the misuse of antipsychotic drugs? How many older people in these homes have been subject to chemical restraint? What is being done to make sure there is informed consent?

Along the way, when expired protective equipment was provided in some cases, how many homes were required to sign waivers releasing the province from liability for providing this equipment? There is nothing wrong with profit but to what extent and limit, and constrained by what? Laws and morality? Companies do not benefit society when they have monopoly power and when the government is not prepared to control them by regulation. Voluntary action has minimal effect, if any.

Of course, if you are a publicly owned and traded company, it may well be about maximizing profits; the pursuit of social objectives rather than profit would be unheard of. Where is the accountability, the fiduciary duty, to those who died in care? It is interesting to note that as loved ones continue to die while in long-term care, private investing in long-term care became very attractive for the private equity investor.

Has a system that may be largely run by for-profit companies prioritized dividends over the right to life? It may well be that by necessity some public health policies will conflict with our civil liberties but surely public health policies can respect our Charter values.

Do the statistics support a relationship between for-profit status and mortality rates? This was the focus of research in the Canadian Medical Association Journal (CMAJ). (See “For-profit long-term care homes and the risk of COVID-19 outbreaks and resident deaths,” CMAJ, Aug. 17, 2020; 192 (33):E946-955 and “COVID-19 and long term care facilities: Does ownership matter?” CMAJ 2020 Aug. 17, 2020; 192 (33):E961-E962.)

In released transcripts from the long-term care commission in late February 2021, Ontario’s Minister of Long-Term Care Merrilee Fullerton was quoted as indicating that “I had suspicions early on … because I’m a family doctor and spent many years dealing with the elderly.”

On Feb. 24, 2021, the province of Ontario announced that it would be investing over $115 million to train up to 8,200 new personal support workers (PSWs) to be available by the fall of 2021. The accelerated personal support worker training program would allow students to graduate with “full credentials” in six months compared to the usual eight.

Researchers with the Canadian Institute for Health Information presented specific findings to the commission on March 3, 2021. Added to the shortage of personal support workers and the increased use of PSW agencies was the finding that medical directors were nowhere to be seen or found in these homes, often in the homes less than one day a week.

No one in charge? This is more significant when one appreciates that fewer than one out of every four long-term care residents had been sent to a hospital before they died. Who was there to send them? Were symptomatic residents left in homes to die, alone and in isolation? Health-care providers need to be actively involved in prevention, in identification and in assessment. That means regular interaction. Once a week may mean inadequate documentation, if not a lack of collaboration for our most vulnerable population.

As governments become more assertively secretive, public confidence erodes. Where is the meaningful access to essential public health data? Governments must not be able to use their power over information to protect the reputation of government entities. Is the lack of meaningful data relating to these homes simply an act of erasure?

Relying on the private sector may well add to the erosion of accountability. We know that health is a matter of shared jurisdiction. Ontario is not alone. The Supreme Court of Canada has enumerated this on many occasions. (See e.g. Reference re Assisted Human Reproduction Act 2010 SCC 61, Eldridge v. British Columbia (Attorney General) [1997] S.C.J. No. 86 and RJR-MacDonald Inc. v. Canada (AG) 1995 3 S.C.R. 199.)

The rights to the highest quality of a system of care of our oldest population are fundamentally elements of a core human right from the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities and the Universal Declaration of Human Rights. We have the obligation to protect people from infringing on the right to health by others, including effective regulation and an effective judicial or other appropriate remedy for human rights violations.

We must continue to work to professionalize our personal care workforce. That means implementing a registration mechanism and a system of accreditation. And professionalization may mean self-regulation as a self-governing profession, independent from external interference and committed to first and foremost the public interest, a college of its own.

Personal care work involving high quality dementia and palliative care requires specialized education and training.

In spite of everything we know, we see that our humanity is the reality, not the inhumanity we often we read about. The compassion of so many is still there.

Each potential death represents lost time, a life, a stage of life that was not able to be completed. Statistics alone do not tell the story. Statistics tell us very little. Human life is not a number.

The focus now must be about life and living.

We await the commission’s recommendations.

This is part two of a two-part series. Part one: Bill 218: The death of memory.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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