Nursing Home Liability – What The Elderly And Their Children Need To Know (Part Two)

Nursing Home Liability – What The Elderly And Their Children Need To Know (Part Two)

December 6, 2020 Off By Glespynorson

Bogoroch & Associates LLP strongly believes that victims of Nursing Home Negligence are entitled to access to justice.

In the previous edition of our blog, we looked at several alarming incidents involving neglect and abuse of residents in nursing homes across Canada, as well as some sobering statistics and reports suggesting such incidents are not that uncommon in long-term care facilities.

There were cases of frail, elderly residents being beaten to death by other residents; dying or being seriously injured after being pushed to the ground by other residents; being sexually assaulted by staff or other residents; suffering severe injuries during improper transfers between their beds and wheelchairs, and being overmedicated, insufficiently cared for, and even allowed to go hungry.

We learned at least 60 nursing home homicides across Canada between 2001 and 2013, including 25 in Ontario between 2001 and 2011,[1] and that more than 10,000 Canadians in long-term care homes suffer abuse at the hands of their fellow residents each year.[2]

The Laws Governing Nursing Homes

Ontario has comprehensive legislation in place to regulate long-term care homes and protect those who live in them.

Whether they are owned privately or by municipalities or charities, all Ontario nursing homes are governed by the Long-Term Care Homes Act, 2007 and Ontario Regulation 79/10. The Act and regulations cover every aspect of the relationship between the government, nursing homes, and residents, including admission, the care, and services the house is obliged to provide, creating resident and family councils, funding, licensing, administration, compliance, and enforcement.

The Act includes a Resident’s Bill of Rights, which contains a lengthy list of entitlements such as the right to be protected from abuse; to not be neglected; to be properly sheltered, fed, clothed, groomed, and cared for; to live in a safe and clean environment; to not be restrained except in limited circumstances; and to give or refuse consent to treatment, care, or services.

Consent is also covered under the Health Care Consent Act, which prohibits doctors and other health care professionals from administering treatments such as antipsychotic medications to nursing home residents without their consent or that of their substitute decision-maker.

Nursing homes are explicitly required under the Long-Term Care Homes Act and Ontario Regulation 79/10 to provide a safe and secure environment for residents, ensure residents are not abused or neglected, and to have written plans of care for residents. The legislation sets out what constitutes both abuse (physical, emotional, sexual, verbal, and financial) and neglect.

Taking reasonable measures to ensure residents’ safety, such as eliminating slip-and-fall hazards or undertaking proper maintenance, is also a requirement for long-term care facilities under the Occupiers’ Liability Act.” [3]

Abuse And Neglect Must Be Reported

The Long-Term Care Homes Act includes comprehensive provisions under which nursing homes must report various categories of incidents and investigate and respond to complaints.

It requires nursing homes to have written policies promoting zero tolerance for abuse and neglect. Those policies must also detail how reports of abuse or neglect are investigated and responded to. Homes must make the policies known to all staff, residents, and residents’ substitute decision-makers.

There are also mandatory reporting requirements that oblige doctors, social workers, home staff, and others to report any improper treatment or care of a resident, abuse, or neglect of a resident, or unlawful conduct that results in harm or risk to a resident, as well as misuse or misappropriation of a resident’s money.

It is also an offense under the Act to discourage or suppress a report of abuse or neglect. There are specific provisions to protect whistleblowers. Homes are prohibited from retaliating or threatening to retaliate against anyone, including staff, residents, and residents’ families, for reporting abuse, neglect, or other violations.

Ontario’s nursing homes are required to publicly post Ministry of Health and Long-Term Care inspection reports detailing all findings of non-compliance with the Act, and these are also available for all homes on the ministry’s website.

Abuse Persists In Nursing Homes Despite Strong Laws

Even with all these legal protections in place, it is clear from reported incidents of abuse and the frightening statistics that our frail seniors are not as safe in nursing homes as they should be. Ontario’s Long-Term Care Task Force on Resident Care and Safety, established by the province’s nursing home associations and advocacy groups in response to media coverage of the issue, summed up the situation in its 2012 report:

“Ontario has strong legislation to support the care and safety of long-term care residents and to prevent abuse and neglect,” stated the task force. “Strong laws are an excellent and necessary beginning, but they are not enough to eliminate abuse and neglect in all long-term care homes.” [4]

The task force listened to and read submissions from almost 2,000 individuals and groups. The input is received suggested that the top factors leading to ill-treatment and negligence in nursing homes included insufficient staffing, inadequately trained staff, lack of leadership, lack of funding, and an environment or culture where abuse and neglect are overlooked.

“The surveys and submissions highlight the fact that fear is the main reason why resident abuse or neglect might not be reported,” noted the task force in its report. “People are afraid of reprisal if they report abuse or neglect: families are afraid that the care of their loved ones will be compromised; residents are afraid they will not get the care they need and are embarrassed that they will not be listened to; staff are afraid they will be ostracised by management and their colleagues; administration is afraid for the reputation of the home.” [5]

The task force came up with 18 “actions” to improve safety and care in nursing homes, including hiring more staff, better training for staff and management, and providing specialized facilities to deal with residents who have aggression and behavioral problems. It will release a final report in 2015 detailing progress on the recommended actions.

Ontario’s provincial government has acted, too, particularly in response to extensive media coverage of incidents and nursing homes problems. Funding for staffing[6] and fire safety[7] has been increased, and the long-term care ministry has vowed to step up inspections and enforcement[8] as well as moving to discourage the overuse of antipsychotics[9] and tranquilizers.

What To Do When Your Loved One Is Neglected Or Abused

But change, if it comes, will not come overnight. Nursing home residents and their families need to educate themselves on their rights and remain vigilant to ensure nursing homes live up to their obligations on care and safety, and not hesitate to speak out when things go wrong.

Suppose neglect, abuse, or errors occur. In that case, residents, their families, or other representatives may complain directly to the home following the written procedures for making complaints that must be posted in all long-term care facilities.

Bogoroch & Associates LLP has extensive evidence representing families whose loved ones were injured because of the nursing/retirement home’s negligence.