There is growing trend in Canada of claims being brought against nursing homes and long-term care facilities (collectively referred to throughout as “Care Homes”). These claims can take several different forms and must be responded to accordingly.

This paper will address several aspects of Care Home claims, including:

• The law;
• Types of Care Home Claims;
• Defending these claims; and
• Recent developments in Canada.

LAW

Due to the absence of Canadian case law dealing with claims against Care Homes there is no judicial direction to speak to the standard of care of Care Homes or to their residents, specifically. Of course, there is case law available speaking to the standard of care of doctors, nurses, hospitals and so forth which may help inform or provide some guidance on what the standard of care of a Care Home might be.

Notwithstanding the absence of case law, each province has comprehensive legislation in place to regulate Care Homes. This legislation differs from Province to Province, but for the most part it governs the relationship between the government, Care Homes and residents. This legislation also creates processes by which potential claims against Care Homes are to be reported, investigated and rectified.

In addition to various Acts and Regulations, each Province will normally have written standards which apply to Care Homes. These pieces of legislation are meant to work congruently with the standards issued by the Province. For example, in Alberta, we have the following:

• Nursing Homes Act, RSA 2000 c N-7;
• Protection for Persons in Care Act, SA 2009 c P-29.1;
• Nursing Homes General Regulation, Alta Reg 232/1985;
• Nursing Homes Operation Regulation, Alta Reg 258/1985;
• Protection for Persons in care (Ministerial) Regulation, Alta Reg 104/2010;
• Protection for Persons in care Regulation, Alta Reg 97/2010; and
• Continuing care health service standards.

As can be seen from the long list above, there is quite a lot to sort through respecting Care Homes. Each Province’s scheme can be different from another in various ways, so it is important to review and understand specifically the scheme of the Province in which a claim is being made.

Canada’s Prime Minister has recently spoken about the possibility of bolstering standards for Care Homes and making them more uniform across the country.[1] As delivery of health care falls under a provincial head of power, any federal intervention will undoubtedly face push-back from provincial premiers. Complicating this situation is the demand from provinces to the Federal government for more funding to improve standards in Care Homes. While we do not know how this will play out, it is certainly something to keep an eye on respecting standards of Care Homes moving forward.

TYPES OF CLAIMS

Potential claims against a Care Home generally fall into the categories of neglect, negligence, or abuse. That being said, any particular claim against a Care Home will not likely fit neatly in only one of these categories. Rather, a claim against a Care Home will begin with the claimant alleging a number of things against the Care Home. As information is exchanged and litigation moves forward, the allegations then get narrowed down to uncover the core of the claim.

1. Neglect

A claim for neglect is characterized more by inaction than it is by the actions of employees of a Care Home. In the Care Home context, neglect creates a risk of injury for residents. Neglect canvasses many potential actions/inactions including not turning a resident who is bedridden or not checking in on a resident in accordance with standards and practices.

1. Negligence

Neglect and negligence may sound like the same thing, but they are different concepts. Neglect relates to an individual’s well being and is an indication they may not be properly cared for or given enough attention. Negligence is of course a legal term meaning someone owed a duty to another and breached that duty with their action/inaction in a particular situation. A claim for negligence can be independent of any neglect or abuse.

1. Abuse

Each Province’s legislation and regulations will often provide a definition of what will constitute “abuse” in the context of a Care Home. For example, In Alberta, under the Protection for Persons in Care Act, “abuse” is defined as:

an act or an omission with respect to a client receiving care or support services from a service provider that

(a) causes serious bodily harm, (b) causes serious emotional harm, (c) results in the administration, withholding or prescribing of medication for an inappropriate purpose, resulting in serious bodily harm, (d) subjects an individual to non‑consensual sexual contact, activity or behaviour, (e) involves misappropriating or improperly or illegally converting a significant amount of money or other valuable possessions, or (f)  results in failing to provide adequate nutrition, adequate medical attention or another necessity of life without a valid consent, resulting in serious bodily harm.[2]

It is evident from this definition the term “abuse” covers a wide array of conduct. In the context of Care Homes, “abuse” is not limited to physical acts and can also encompass what might be more broadly understood as emotional abuse or financial abuse. It is important to take this into account when thinking about potential claims because how many acts might be caught under this very broad definition and also to understand each of these different types of “abuse” may require different responses.

DEFENDING CLAIMS AGAINST CARE HOMES

When responding to a claim against a Care Home, acting quickly is important. There will likely be a vast array of documents and information to be collected and analyzed. Another important aspect of responding quickly to these types of claims is not to give the claimant any sort of impression their claim or concerns are not being addressed.

1. Important Documents/Records

In defending a claim against a Care Home, important documents/records to obtain include:

• Any written policies/procedures/protocols of the Care Home, including;
  • Patient monitoring protocols;
  • Emergency response plans;
  • Protocols for day-to-day care;
  • Investigation and reporting protocols;
• Plaintiff’s medical records, both before and during their time in the Care Home;
• Maintenance records for any equipment alleged to have contributed or caused the loss;
  • If maintenance was done by a third-party, will need to request records from them;
• Any incidents reports related to the incident or similar incident, including any documented complaints from the claimant or claimant’s family;
• Any photo or video evidence detailing what might have occurred;
• Any compliance orders or sanctions previously issued to the Care Home;
• Any sanctions issued by the Care Home to any employees involved with the incident or similar incidents;
• Staffing schedules;
• Records of visits from any outside care providers;
• Employee training and screening protocols/records; and
• Police incident reports.

This is not meant to an exhaustive list of all important documents to obtain, but the documents listed can all be very important to defending a claim.

It may also be necessary to obtain written and/or recorded statements from individuals involved with a particular claim. From whom these statements should be obtained will be decided on a case-by-case basis, but generally it may be important to obtain statements from the following people:

• Any employees who were directly involved with a particular incident including LPNs/RNs, healthcare aids, and housekeeping staff;
• Any supervisors/managers working at the time of a particular incident;
• Any employees involved with the claimant’s care generally;
• Visitors of the complainant; and
• Other residents if they were closely involved with the claimant, however, it is important to be aware of any capacity issues.

Collecting and analyzing documents and information is an important preliminary step in defending any potential Care Home claim and as such, should be a made a priority.

1. Potential Defences

When analyzing potential defences to a Care Home claim, it is important to look to the Provincial Legislation. For example, Alberta’s Protection for Person’s in Care Act provides what will not constitute “abuse” under the Act. Pursuant to the Protection for Person’s in Care Act, an act or omission does not constitute abuse:

• if a service provider carries out the service provider’s duties in accordance with professional standards or practices or any standards established by or adopted pursuant to another enactment,
• if the care or support services provided by the service provider are reasonably necessary in the circumstances,
• where the act or omission is the result of, or is attributable to, a client’s refusing care or support services,
• when the act or omission is based on a decision made on behalf of a client.[3]

When faced with a potential abuse claim, this is a great starting point. If the alleged act of abuse can fit into one of the categories above, then there is a potential statutory defence.

Any other defences pled and relied on will be entirely dependent on the circumstances of the claim. There is no “one size fits all” defence to these types of claims and each one must be carefully analyzed by counsel.

ADDITIONAL CONSIDERATIONS

Something to keep in mind when handling claims against Care Homes is the emotional aspect.  While injury or loss claims generally have an emotional element, Care Home claims the level of emotion will often be amplified.  Often times these claims are brought by friends and/or family of the residents of Care Homes. The feeling or belief that someone they love, especially someone who may be vulnerable such as a resident in a Care Home, has been mistreated or injured because of the actions of another can inevitably lead to a strong emotional response. This understanding of the underlying emotional reaction is important because it decreases the likelihood of the claim simply being abandoned or move quickly to a settlement. In addition, when defending these types of claims, it is important to ensure the file is being moved forward in a timely manner and the claimant is being responded to.

RECENT DEVELOPMENTS: COVID-19 PANDEMIC

One group of Canadians who have be hit hardest by the effects of the COVID-19 pandemic are residents and staff at Care Homes. In Ontario alone, COVID-19 has taken the lives of at least 3,756 residents and 11 staff members of Care Homes and at one point, sparked military intervention.[4] A similar trend can be seen in British Columbia, where as of the start of 2021, 602 residents of Care Homes lost their lives due to COVID-19 which is almost two-thirds of the total COVID-19 deaths in the province.[5] On a National scale, as at December 17, 2020, residents of long-term care facilities have accounted for more than 80% of COVID-19 deaths in Canada.[6]  These numbers are staggering and for obvious reasons have drawn attention on a national scale.

When looking at the staggering number of deaths at Care Homes during the pandemic, it is important to keep in mind these deaths are not occurring at every single Care Home across the country. Indeed, a large majority of these deaths have occurred at only a few specific Care Homes. Obviously, these Care Homes face the largest risk when it comes to claims arising from the COVID-19 pandemic and it does not mean you will not see a COVID-19 claim surfacing at a different, smaller facility depending on the circumstances.  It is also important to note, merely because a COVID-19 claim surfaces does not necessarily translate into a finding of negligence on the part of the Care Home.  It is critical the complete investigation is done irrespective of the optics of the claim to determine if a COVID-19 claim has merit.

Already we are seeing individual and class-action lawsuits against Care Homes. To this point we know class actions have been filed in Ontario, Quebec and Saskatchewan. Generally, these class actions will be alleging Care Homes negligently handled the COVID -19 pandemic and also, potentially, that they have breached their contracts with residents by failing to provide adequate care and safety. It is difficult to predict how these actions will proceed because this is truly an unprecedented time in human history. We do not know the standard of care to which the Courts will hold Care Homes in these circumstances because Courts have never been asked to rule on such matters previously. Regardless, these cases will likely turn on what is considered reasonable care during a pandemic. In hand with determining what the standard of care ought to have been, is determining what was reasonably foreseeable in the circumstances, an equally hard-to-predict outcome. To this point, none of the proposed class actions have been certified.

Important to note, even if these class actions are successful in whole or in part, the damage awards may be lower than what some might expect. Individuals bringing a class action on behalf of seniors who have suffered injury or death while in the care of a Care Home are not being compensated for loss of companionship.[7] Rather, these individuals would be receiving compensation for the loss of economic benefits and since many senior are not providing economic benefits, these damages awards may not be very high at all.[8] Still, in the event a Care Home’s conduct was truly egregious or falling well below whatever the standard of care might be, there is chance punitive damages will follow.

While there are still a large number of unknowns with respect to how these claims will proceed and what outcomes we might see, it will be important to keep a keen eye on the actions as they progress. The importance of the outcome of these claims and the future of Care Homes is magnified by the fact some market experts predict the nursing care facility market in Canada to grow by 3.9% from 2020-2027.[9] This is important not only for responding to Care Home claims arising specifically from the COVID-19 pandemic, but also for responding to Care Home claims generally. In the coming years there will be an influx of case law on Care Home standard of care in addition to the inevitable changes to Care Home operations given the national spotlight was so focused on the events unfolding in 2020 in these facilities.

 

[1] Provinces that don’t agree to improve long-term care standards risk losing funding, PM hints – National Observer Article – December 17, 2020

[2] Protection for Persons in Care Act, SA 2009 c P-29.1 at s. 1(2) [Protection for Persons in Care Act].

[3] Protection for Person in Care Act, supra. at s. 1(3).

[4] Ontario nursing homes badly prepared for COVID-19 pandemic, auditor general says – Canadian underwriter article – Colin Perkel

[5] Residents in care facilities make up nearly two-thirds of COVID-19 deaths in B.C. – CBC article – January 7, 2021

[6] Provinces that don’t agree to improve long-term care standards risk losing funding, PM hints – National Observer Article – December 17, 2020

[7] Lawsuits over COVID-19 in nursing homes to question standard of care – National Observer Article – May 4 2020

[8] Ibid

[9] Market Insider Article – May 28, 2021