ARCH Disability Law Centre | Submission regarding Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts

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Submission regarding Bill 37, An Act to…

Submission regarding Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts

Submissions of ARCH Disability Law Centre to the Standing Committee on the Legislative Assembly regarding Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts

November 25, 2021

A. Introduction

ARCH Disability Law Centre welcomes the opportunity to provide written submissions on Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts to the Standing Committee of the Legislative Assembly.

The fundamental principle of Bill 37 is that “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 may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met”.

However, this essential goal has not been met by Bill 37. The Bill fails to modernize a long-term care system that is woefully out-dated, underfunded, understaffed and that has desperately failed Ontario’s seniors. Bill 37 is primarily a restatement of the current Long-Term Care Act 2007 and does not deliver a transformed and improved sector, as recommended by the Marrocco Commission [1].

The concerns raised and recommendations offered herein flow from a fundamental concern that Bill 37 does not contemplate or address the particular, complex, and specific needs of seniors and persons with disabilities.

Similar to other pieces of legislation, Bill 37 has been quickly pushed through provincial parliament[2]. Bill 37 was introduced on October 28, 2021. The legislature rose for a week, and when it returned on November 17, Bill 37 received second reading and was referred to this Standing Committee on November 18, 2021. Oral submissions were made from November 22 – 25 and written submissions are due November 25, 2021. There is little time afforded to interested advocacy groups to make their concerns about Bill 37 known. There is only a slight nod to public consultation, sending the message that this government is uninterested in public consideration and discourse on important issues affecting persons with disabilities and seniors. Indeed, given this short timeframe, ARCH was unable to meaningfully consult with communities of persons with disabilities and those who support them. Our submissions rely on the work we have done with marginalized communities but has not been informed by direct consultation with those impacted by this Bill.

Finally, the title of the proposed legislation is misleading. Bill 37 doesn’t “fix” the documented problems in the long-term care sector. A careful analysis of Bill 37 demonstrates that language is added to make it appear that the government is doing something, when it is actually maintaining the status quo. Younger adults with disabilities and seniors deserve so much more than a restatement of the current Act, particularly against the background of COVID-19 and substantial criticism that the current legislation fails society’s most vulnerable.

Recommendation:

1) This government should withdraw Bill 37, conduct meaningful consultations with seniors, persons with disabilities and/or their families, carers and rights advocacy groups so that Bill 37 addresses important considerations based on lived experience.

B. About ARCH

ARCH is an Ontario-based specialty legal clinic that is dedicated to defending and advancing the equality rights of persons with disabilities. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. ARCH provides a telephone summary advice and referral service and represents individuals as well as provincial and national disability organizations in test case litigation at all levels of tribunals and courts. We provide education to persons with disabilities on disability rights and to the legal profession about disability law. We make submissions on matters of policy and law reform. ARCH maintains a website at: www.archdisabilitylaw.ca

The comments and recommendations herein are informed by ARCH’s legal work which includes the direct representation of persons with disabilities, and working with community organizations and disability groups, on issues related to long-term care facilities.

C. Issues and Recommendations

I. Younger Persons with Disabilities Should Not Be Housed in Long-Term Care Facilities

Bill 37 ignores the unfortunate reality that many persons with disabilities who are under age 65 are forced to live in long-term care facilities because of the paucity of options available to them. Recent statistics show that 7% of all residents in long-term care homes are persons with disabilities aged 19 – 65. [3]

ARCH supports the rights of persons with disabilities to live with dignity in their chosen community, to fully participate in all aspects of their life, and control and make decisions and choices about issues that affect them. Article 19 of the Convention on the Rights of Persons with Disabilities confirms the essential right to live independently and be included in the community [4]. However, these important values are undermined if persons with disabilities are denied choices about where, and with whom, they live.

Young adults with disabilities do not belong in facilities where it is difficult to form friendships or relationships with persons who are at the end stages of life, or with persons who have different life experiences and interests than they do. Loneliness and social isolation can result from the lack of peers of a similar age. Programming frequently does not meet the needs of younger adults with disabilities and it is next to impossible to individually tailor programs or services to engage and keep younger people active. Staff may not be trained to provide appropriate services to a younger cohort. There is an emotional toll and significant grief to contend with when people around you are dying. Younger people with disabilities may age more quickly when surrounded by aging and dying long-term care residents.

The absence of effective community supports, which would allow younger adults with disabilities to live in and age in their own homes, is a fundamental barrier to independent living. The lack of supported, affordable, and accessible housing is another barrier younger adults with disabilities face. However, reliance on the long-term care system to house persons with very different needs will continue if the government does not make it a priority to provide adequate community supports or appropriate housing. The government must create options that give younger persons with disabilities choice and control over where they live, and with whom.

Recommendations:

2) The government must adopt the principle that a person with a disability cannot be deprived of choice and control regarding where they live, with whom they live, their lifestyle and daily activities.

3) The government must invest in community supports and services for young adults with disabilities, so they can live and age in a setting or community of their choice.

4) The government must invest in affordable, accessible and appropriate housing options for young persons with disabilities to enhance choice and decision-making options.

II. Remove “Mission-driven” from the Legislation

Bill 37 erodes government commitment to non-profit organizations. It opens the door wider to for-profit operators to enter, as long as they are “mission-driven”.

Newspaper coverage and the Long-Term Care COVID-19 Commission Report[5] have shown us that the death toll of seniors, and persons with disabilities, in long-term care homes was primarily in for-profit settings. However, instead of pushing for more public sector control over long-term care, this government has affirmed its commitment to private sector operations and management as long as they are “mission driven”. Mission-driven is not defined in the Bill.

It has been well documented that for-profit housing represents a conflict of interest in long-term care settings.

After almost 4,000 deaths in long-term care facilities, this government has not heeded the urgent signal that drastic change is necessary to protect long-term care home residents from degrading and hostile living settings, where profit can override considerations of quality of life and quality services.

The current Act commits to the delivery of long-term care by non-profit organizations. Given the horrific backdrop to the proposed legislation, we expect nothing less than a renewed commitment to non-profit management of long-term care.

Recommendation:

5) The government remove any reference to mission-driven organizations in the proposed legislation.

III. The Bill of Rights and Enforcement

Many of the current rights under the Bill of Rights have been simply moved around under the proposed Act. Additional rights have been added, and while we do not want to detract from their importance, the fact is that these additional rights are already mandated by the Ontario Human Rights Code. However, ARCH’s primary concern is how these rights can be enforced.

ARCH has not been able to find any decisions where the Bill of Rights has been the subject of a breach of contract action in courts. Enforcing rights through the courts is time consuming and expensive, with many procedural rules that must be followed.

The Health Service Appeal and Review Board (HSARB) is established to decide cases about quantity of service complaints. ARCH believes that the jurisdiction of HSARB could easily be expanded to include quality of service complaints and breaches of the Bill of Rights. Administrative tribunals have flexible processes, with fewer evidentiary rules, and can more quickly resolve grievances so they do not fester. HSARB has a pre-hearing or mediation process that happens quickly, and attempts to settle disputes before a hearing begins.

If the government does not want to rely on HSARB to resolved breaches of the Bill of Rights or quality of services complaints, then ARCH recommends that a different, but similar, independent administrative body be established to determine grievances in an expeditious and non-adversarial manner. Residents and staff must continue to work together and collaborative approaches to dispute resolution help to maintain a positive working relationship without fear of reprisal.

Recommendations:

6) Expand the jurisdiction of the Health Services Appeal and Review Board to hear appeals on the quality of services provided to resident by living in long-term care, in accordance with the Bill of Rights.

7) Alternatively, the government must establish an independent tribunal responsible for resolving quality of service complaints and reaches of the Bill of Rights.

IV. Enforcement By Annual Surprise Inspections

Bill 37 does not reintroduce annual surprise inspections. ARCH believes that the only way to maintain quality standards and quality services in long-term care facilities is to have annual surprise inspections. These would add to quality control measures. They would encourage long-term care facilities to be proactive in the services it provides.

Recommendation:

8) Bill 37 be amended to require annual surprise inspections of all long-term care facilities.

V. Service Targets

Bill 37 introduces an improvement for residents by recommending that an average of 4 hours of direct service be provided to them. However, these targets are a restatement of promises made in the 2020 budget. The end date for implementation of these services is 2025. Back loading the introduction of direct care to residents by 2025 is insupportable. Residents need direct services now, not in four years when many current residents will not benefit from these dedicated service targets.

Four hours of direct care per resident is based on an average across the long-term sector. ARCH strongly recommends that the four hours of direct service average be calculated on a per resident per facility basis. This would significantly increase the amount of services a resident can expect, that best meets their changing needs as they age.

In addition, facilities must be required to publicly report that they are meeting the standard of four hours care per resident, so they can effectively be monitored in reaching this goal. Explanations regarding why service targets are not being met must also be publicly reported.

Moreover, no consequences for failing to meet the four hour standard of care are spelled out in the legislation. Penalties must be imposed on facilities that do not meet this standard of care, otherwise the provision can be virtually meaningless.

Recommendations:

9) The target of four hours of direct care for residents must be implemented immediately.

10) The average of four hours per resident should be calculated on a facility by facility basis.

11) Facilities are required to publicly report that they are meeting the four hours of direct services per resident. Explanations must be provided if the four hour standard is not being met.

12) Meaningful penalties must be imposed for failure to meet the four hour direct service average.

VI. Address the Staffing Crisis

ARCH relies on and adopts the critical submissions and recommendations of the United Steelworkers[6] on this important topic.

D. Conclusion

Throughout these submissions, ARCH has highlighted some of the underlying issues in the Long-Term Care sector that must be addressed by Bill 37. ARCH believes that if the recommendations included in these submissions, as well as the thoughtful submissions and recommendations from other rights’ based advocacy groups, are implemented, an improved framework for persons with disabilities and seniors will result.

Thank you for the opportunity to provide our submissions on this important Bill. If you have any questions or if ARCH can be of further assistance, please do not hesitate to contact us.

Appendix A

Recommendations