Sep 3rd, 2020
TORONTO: The Justice Centre will carefully review the details of yesterday’s announcement by the Minister of Long-Term Care, Dr. Merillee Fullerton, of upcoming changes to visitor policies to permit each long-term care resident access to a maximum of two of their essential family and private caregivers.
Last month, the Justice Centre filed a Judicial Review application and Canadian Charter of Rights and Freedoms challenge against the Ontario government on behalf of Mafalda Maione and Barbara Mills, both elderly residents of long-term care homes, and their daughters who are their caregivers. The lawsuit contends that the government has infringed their Charter rights to life, liberty and security of the person, and asks the court to review the government’s decision to keep family and private caregivers locked out of care homes. Residents have been kept in their rooms, isolated from family members, and deprived of the care and supervision of loved ones for more than five months. Many residents have suffered cognitive and physical decline due to a lack of care from loving family members. Some residents have died.
The COVID restrictions in the Ontario Divisional Court require that the lawsuit proceed to a hearing, scheduled for September 11, to determine if the contended constitutional violation of residents’ rights is sufficiently “urgent” to proceed, which is an added hurdle for new court applications.
While the Justice Centre is pleased to see that the government is moving toward restoring the rights of long-term care residents to have access to their essential family and private caregivers, important concerns remain after reviewing the Ontario Government’s news release.
- the need for a negative COVID-19 test every two weeks, which is not required of on-staff caregivers and may be a barrier to families without access to testing;
- the limitation on the number of private or family caregivers, given that some residents need around-the-clock care;
- the lack of enforcement measures and the absence of a clear, binding, order to all long-term care homes to make sure access is consistent across the province; and
- extra and potentially different rules to be set locally by public health units which may prevent reasonable access by family or private caregivers.
Other concerns may be noted when the Ontario Government releases its final guidance.
“The Ontario government is finally listening to the concerns and recommendations of many stakeholders, including family caregivers and experts in the field, and the legal demands put forward by the Justice Centre and other advocates,” says Lisa Bildy, Ontario-based staff lawyer with the Justice Centre.
“Unfortunately, it has taken five months to even begin to restore the caregiver access to which long-term care residents should have been entitled throughout. Much unnecessary damage to the health and lives of the elderly and infirm has occurred while heart-rending appeals for access went unanswered for months on end,” notes Bildy.
“We want to ensure that the Ford government gets the message that it cannot unjustifiably infringe the Charter rights of Ontarians, including the elderly, to life, liberty and security of the person,” continues Bildy. “And we want to make sure they will not be able to essentially imprison the elderly and take away access to their loved ones, caregivers and substitute decision-makers again.”