On March 14th, 2020, the National Post reported that Ontario’s Chief Medical Officer (CMO) of Health issued a memo recommending that all long-term care homes, retirement homes, supportive housing and hospices only allow ‘essential visitors’ – people visiting residents who are very ill or require end-of-life care. These homes have been advised to turn away family members and other visitors who they do not consider ‘essential’. Family members have been advised to keep in touch with loved ones by phone.
It has been widely documented that COVID-19 is more likely to cause severe and/or fatal illness in older adults and in those with underlying health conditions.
It is clear that quick and effective steps must be taken to manage the risk, but the question remains: are long-term care homes and retirement homes legally authorized to restrict visitors under these circumstances? Also, what are the criteria being used to identify residents ‘who are very ill’ or those who ‘require end-of-life care’?
News reports indicate that the decision to restrict visitors in long-term care has left many family members upset and worried about the care of their loved ones. Prior to the COVID-19 crisis, there were many reports regarding a shortage of PSWs in long-term care and an increase in medically complex residents. As a result of these conditions, it was not uncommon for family members to try and assist with the care of their loved ones in the home and regularly check-in to make sure that they were getting appropriate care.
Unlike long-term care homes, the residents in retirement homes are considered tenants in the eyes of the law, which means they are afforded the same rights as any other tenant in Ontario, including the right to receive visitors. So, retirement home residents continue to have the legal right to visitors at this time; however, retirement home administrators owe a duty to keep their tenants safe and may choose to restrict visitors regardless.
Are Long-Term Care Residents Entitled to Visitors?
The Health Protection and Promotion Act (HPPA) authorizes the CMO by written order to require a person to take or to refrain from any action in respect of a communicable disease. The Act also provides the CMO with the power to make an order requiring an institution (which includes a long-term care home) to take any actions specified in the order for the purposes of monitoring, investigating and responding to an outbreak.
Based on these sections of the HPPA, the CMO does have the authority to order long-term care homes and retirement homes to restrict visitors by order; but, to date, there have not been any published reports of such an order having been issued by the CMO.
Long-term care homes may also have the legal authority, independent of an order issued by the CMO, to restrict visitors given the COVID-19 crisis. This authority may come from The Residents’ Bill of Rights, which forms part of the Long-Term Care Homes Act. The Bill sets out the rights afforded to all persons living in long-term care homes in Ontario.
The legislation provides that “every resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference”. However, the Bill also provides residents with the right to live in a safe environment.
In the circumstances, long-term care home residents’ rights to (a) receive visitors and (b) to live in a safe environment are at odds. This novel situation raises difficult legal questions about how we should resolve tensions between individual and group rights, and the sort of framework we should use to balance those rights.
The Long-Term Care Homes Act does not provide a framework for reconciling tensions between conflicting rights. However, section 1 of the Act sets out the fundamental principle to be applied in the interpretation of the Act: “a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they [residents] may live with dignity and in security, safety and comfort…” The fundamental principle of interpretation also seems to raise competing interests.
Sadly, several thousands of older adults have died as a result of COVID-19 and this is a situation where the government in Ontario has now decided that overriding disease control concerns should apply. While the government has made it clear that they consider the common good to be paramount, we cannot understate the huge impact that restriction of visitors will have on our vulnerable elderly and the heartbreak of the family members who cannot see or care for their loved ones.
There continues to be a lack clarity regarding who will be considered an ‘essential visitor’ and on what basis. With no clear framework, who gets to see their loved ones is very likely going to be a matter of advocating for access with the administrators at individual long-term care/retirement homes.