ACE Submissions to Ministry of Long-Term Care
Support for Seniors and Caregivers Act, 2024 & Amendments to the Fixing Long-Term Care Act, 2021
January 6, 2024
Submitted via Ontario Regulatory Registry Website
Ministry of Long-Term Care
6th Floor, 400 University Avenue
Toronto, ON M5G 1A5
Dear Sirs/Mesdames:
RE: Support for Seniors and Caregivers Act, 2024
Amendments to the Fixing Long-Term Care Act, 2021
The Advocacy Centre for the Elderly (“ACE”) welcomes the opportunity to provide feedback on the Support for Seniors and Caregivers Act, 2024 proposing amendments to the Fixing Long-Term Care Act, 2021 (“FLTCA”) and the Retirement Homes Act (“RHA”).
ACE is a specialty legal clinic that was established to provide a range of legal services to low-income seniors in Ontario. Its mission is to uphold the rights of low-income seniors, and its purpose is to improve the quality of life of seniors by providing legal services which include direct client assistance, public legal education, law reform, community development and community organizing. ACE has been operating since 1984 and was the first legal clinic in Canada with a specific mandate to serve older adults and with expertise in elder-law issues.
ACE has over 30 year’s expertise in representing residents in long-term care homes. ACE contributed to the drafting of the Long-Term Care Homes Act, 2007 and its regulations. ACE wrote Long-Term Care Facilities in Ontario: The Advocate’s Manual, (1998, 2001, 2004), which analyzed and explained the law and policy relating to long-term care homes for the layperson. ACE also has expertise in dealing with the RHA, providing advice, education and representation.
ACE has 40 years expertise on legal issues affecting the rights and interests of older adults in Ontario and throughout Canada: we trust that our feedback concerning the proposed changes will be of assistance.
PROPOSED AMENDMENTS
Our comments will be restricted to the sections where we have comments or concerns.
1. Schedule 1 – Fixing Long-Term Care Act, 2021:
a. Section 3 – 18. Cultural, linguistic, religious and spiritual recognition
ACE supports the inclusion of this section. However, we believe that this section should be broadened, or a companion section be added, to ensure that other types of recognitions are also met, such as for young residents, the 2SLGBTQIA+ community, and others whose needs may differ from the main population in the home.
While the section indicates that the person shall be given “reasonable opportunity” to practice their religious and spiritual beliefs, there is no indication of what is “reasonable”, and that staff should be assisting in these endeavours, where required.
One area that is brought up frequently by callers to ACE is the provision of religiously appropriate food. We get many complaints about the inability of residents to obtain foods that are appropriate to their religion, such as kosher meals, vegetarian options, etc. Given the current lack of culturally appropriate homes, many people are admitted to homes that are unable to meet their religious dietary requirements. Often they are unable to eat the food provided by the home, which has resulted in residents having to incur costs to bring in food from outside.
RECOMMENDATIONS
a. Expand this section to recognize other identifiable cohorts of residents such as young residents and members of the 2SLGTQIA communities.
b. Define what is “reasonable” in legislation, regulations or policy, to ensure that residents’ needs are met.
c. Require the licensee to assist residents in practising their religious and spiritual beliefs, where required.
d. Require homes to provide meals and snacks which meet the residents’ religious or spiritual requirements, including funding where meals must be brought in from a third party.
b. Section 5 – 48.1 Report
ACE supports the inclusion of this section. However, we do not believe that this goes far enough to remedy the issues related to long-term care home placement and submission that currently exists.
In Corporation of the County of Bruce v Director, Long-term Care Inspections Branch, 2023 CanLII 100577 (ON HSARB), the County of Bruce appealed an order of the Director that they admit an application to a long-term care home which had refused the application. One of the reasons that they overturned the order was that the applicant was not a resident, and therefore the Director could not make the order.
The issue of application refusals is an ongoing one which we deal with frequently. Applicants are often refused admission for inappropriate reasons, and the only avenue of relief available to applicants when they feel that they have been denied admission in contravention of the FLTCA and its regulations is a complaint to the Director, who has historically made orders to comply with the legislation regarding refusals and, on occasion, order residents to be admitted. However, with this decision, it is no longer clear that the Director has the authority to make such orders as it relates to long-term care home applicants.
RECOMMENDATIONS
a. Amend the FLTCA by adding the following sections:
i. Under the Act and regulations, an applicant for long-term care is deemed equivalent to a resident of long-term care for the purpose of inspection, investigation, compliance and enforcement of this legislation.
ii. The Director may inspect and give orders to the placement co-ordinator and Ontario Health atHome in relation to compliance with this Act and regulations.
b. Make necessary regulatory change, including to O. Reg. 246/22 s. 299.
c. Section 5 – s. 78 Clinical Director
ACE has concerns about the change allowing a registered nurse in the extended class (nurse practitioner) to be the Clinical Director. Currently, only physicians are entitled to be the Medical Director.
It is our understanding that due to the COVID-19 pandemic, exceptions were made to allow nurse practitioners to assume this role.
While we have high regard for nurse practitioners, they are not equivalent to physicians in either training or scope of practice. It is our concern that given the increasing medical complexity of residents in long-term care, that allowing nurse practitioners to take this role could jeopardize resident safety.
RECOMMENDATIONS
Withdraw the proposal to change “Medical Director” to “Clinical Director” and commission an independent study to determine the effect on residents of having a “Medical Director” versus a “Clinical Director” who could the a nurse practitioner in the extended class.
d. Section 5 – s. 92(2)(b) Psychotropic Drugs
We oppose this change. We submit that the section remain as it is, with the discussion and reporting of the use of psychotropic medication be to and by the Medical Director (or Clinical Director should this change be made).
The overuse and misuse of psychotropic medications in long-term care is well known. Seniors especially can have serious side-effects from these medications, including death. Allowing for different mechanisms in different homes would cause confusion, especially given the large staff turnover in some homes and that some people work in multiple homes. It could also lead to more than one person in a home being responsible for this, again causing confusion. It is extremely important that the person designated be clear and consistent throughout the system, which we believe should be the Medical Director (Clinical Director).
RECOMMENDATIONS
Withdraw the amendment. The responsibility for the oversight should remain in the hands of the Medical Director (Clinic Director).
2. Schedule 2 – Retirement Homes Act, 2010
a. Section 1 – s. 51(1)12.
ACE has serious concerns regarding the inclusion of s. 12.
We understand that the purported purpose of this section is to address the issues that arose during the COVID-19 pandemic related to the exclusion of caregivers.1
| 1 It is the position of the Advocacy Centre for the Elderly that the restrictions on visitors and the detention of residents in both long-term care homes and retirement home as set out in Directive 3 during the COVID-19 pandemic were illegal as there were no orders made under the Health Protection and Promotion Act s. 22. |
However, this section actually limits the rights of those residing in a retirement home, instead of increasing their rights. Retirement homes are tenancies under the Residential Tenancies Act, 2006, and as tenants, they are entitled to the same rights as any other tenant. This includes the ability to have visitors without interference by their landlord (the licensee). This right was confirmed in the case Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC) which held that not only do landlords have no authority to restrict visitors, they are not entitled to use the Trespass to Property Act to bar tenants’ visitors.
The proposed section not only limits the right of the resident to have visitors of choice by limiting this right to certain individuals who are there to “support [their] physical, mental, social and emotional well-being and qualify of life”, but further allows for regulations to identify specifically who would have a “right” to visit, which would contravene current law.
We therefore strongly urge you not to pass this section, given that it actually proposed to restrict retirement home residents’ current rights to unrestricted visitors.
RECOMMENDATIONS
We submit that the section be rewritten as follows:
The right to all rights and protections as a tenant under the Residential Tenancies Act, 2006, including the right to have visitors without interference by the licensee, and specifically a prohibition on the licensee issuing trespass notices against resident’s visitors under the Trespass to Property Act.
b. Section 2 – s. 60.1 – Directions and recommendations re infectious diseases
This section would allow a government employee to issue directions or recommendations to a home regarding the prevention and management of infectious respiratory or gastrointestinal diseases.
We oppose this section and request that it be withdrawn.
It is our position that local medical officers of health currently have authority to deal with infectious disease outbreaks. This amendment would allow a bureaucrat, instead of a qualified health professional, to make these decisions and give directions. These bureaucrats are not required to have any health background, and we submit that this is proposal is extremely problematic.
We further submit that this could in fact, cause harm as occurred during the COVID-19 pandemic, where both retirement home and long-term care home residents were subject to improper “directives”, barring residents from leaving homes and having visitors. We believe that the propose section could cause similar harm.
Specifically, during the pandemic, retirement home residents (and long-term care home residents) were detained pursuant to Directive #3, instead of orders under section 22 of the Health Protection and Promotion Act (HPPA), denying both licensees and residents the right to review which was set out in that section. We submit that while HPPA s. 77.7 does authorize the Chief Medical Officer of Health to issue directives, which was made applicable to retirement homes for the purpose of COVID-19 pursuant to O. Reg. 166/11 s. 27(5)(0.a)&(0.b), this section does not authorize restrictions or detention against patients or residents, but only relating to worker health and safety.
Should this amendment be passed, we believe that similar harm could occur.
RECOMMENDATIONS
We submit that the section be withdrawn and that the authority to deal with infectious diseases should remain under the Health Protection and Promotions Act.
CONCLUSION
We thank you for your consideration of our submissions.
Should you wish to discuss our recommendations and concerns, please do not hesitate to contact the undersigned.
Yours truly,
ADVOCACY CENTRE FOR THE ELDERLY
Jane E. Meadus
Barrister & Solicitor
Institutional Advocate