Long-Term Care Home System Strained but Not Broken

Co-authored by Nareh Ghalustians

The Report on the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”) was released on July 31, 2019, with 91 recommendations (the “Recommendations”) for improving the safety and security of residents in Ontario’s long-term care system, and for Ontarians receiving home care services. The Report was released following the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Inquiry”). The commission to spearhead this Inquiry was established on August 1, 2017, after Elizabeth Wettlaufer pleaded guilty to and was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault offences that she committed while working as a registered nurse in various long-term care homes in southwestern Ontario and as a nurse providing home care services in private homes. She has been sentenced to life imprisonment with no parole eligibility for 25 years.

This article reviews Volume 1 of the Report and identifies the mandate of the Inquiry and its key findings and summarizes the Recommendations affecting long-term care homes in Ontario. We anticipate that there will be broader implications across the entire health sector arising from these Recommendations.

Background

The Report was dedicated to the victims and their loved ones. It notes that the regulatory regime that governs the system is not broken and imposes clear standards for long-term care homes, and a rigorous inspection regime to enforce those standards that can be built upon and improved. In that vein, the Report requires the Ministry of Health and Long-Term Care (the “Ministry”)[1] to issue a report by July 31, 2020, describing the steps it has taken to implement the Recommendations coming out of the Report, and to table that report in the Ontario Legislature. In a recent news release, the Ministry stated its intention to meet this deadline.

Mandate

The Report notes that the mandate of the Inquiry was to inquire into the events that led to the offences, circumstances, and contributing factors, and to make recommendations on how to avoid similar tragedies in the long-term care system. The mandate was not to conduct a general review of the long-term care system.

Key Findings

The Report highlights three main findings:

  1. The offences would not have been discovered if Elizabeth Wettlaufer had not confessed.
  2. The offences resulted from systemic vulnerabilities.
  3. The long-term care system is strained, but not broken.

Recommendations

The Report was clear that change is required on a systemic level.

Training

The Report recommends that long-term care home licensees must provide training to administrators and directors of nursing on hiring and discipline of staff, conducting workplace investigations, and on reporting obligations to the Ministry and the College of Nurses of Ontario (the “College”). Recommendation #3 suggests that this training be provided by the Ministry, the College, and the Office of the Chief Coroner/Ontario Forensic Pathology Service.

The Report also recommended that medical directors, attending physicians, and nurse practitioners of long-term care homes receive comprehensive, ongoing training on preventing resident abuse and neglect, a requirement from which they are currently exempted, unlike other staff such as registered nurses.

The Report also adds a specific Recommendation that Medical Directors complete the Ontario Long-Term Care Clinician’s Medical Director course within two years of assuming the role of Medical Director in a long-term care home.

Furthermore, the Report recommends additional training for staff, visitors, and residents about their obligations to report to the Ministry (not just to the long-term care home) regarding suspected abuse and neglect of residents that results in a risk of harm to the resident (see s. 24(1) of the Long-Term Care Homes Act, 2007 (the “Act”)).

Summary of Other Key Recommendations

  • Handling of Medication. Recommendations were made for improving the long-term care home’s medication administration and medication incident reporting systems, and how to use the recommended redesigned institutional Patient Death Record, once it is created.

 

    • Improved medication management in long-term care homes is recommended through a three-pronged approach directed at the Ministry creating new policies, improving the annual quality inspection process, and by long-term care homes modifying and improving the security of rooms in which medications are stored and using technology to support medication management.

 

    • Recommendations are made to the Ministry to permit long-term care homes to use the additional nursing and personal care funding to purchase or upgrade integrated automated medication dispensing cabinets and install cameras and/or glass doors in medication rooms.

 

    • It is recommended that long-term care homes improve their medication incident analyses (required by the Act) and treat the use of glucagon as a medication incident. Medication incidents, under the Act, would have to be reported and reviewed at least quarterly by the long-term care home’s medication management interdisciplinary team, composed of the Medical Director, administrator, director of nursing and personal care, and the pharmacy service provider. More details regarding medication management can be found in Recommendations #74-84 of the Report.

 

    • Recommendation #19 recommends that the Ministry expand the nursing and personal care funding envelope and permit long-term care homes to use these funds to pay for a broader spectrum of staff including porters, pharmacists, and pharmacy technicians.

 

    • Recommendation #76 goes further to recommend that long-term care homes use this funding to engage a staff pharmacist and/or pharmacy technician. The Report also recommends that the licensees use this new funding for training, education, and professional development of all staff, including the backfilling of positions for staff attending training. Further, the Report recommends that licensees be permitted to use the expanded or new funds for annual membership fees in AdvantageOntario and the Ontario Long-Term Care Association.

 

  • Agency Nurses, Service Providers, and the Role of the Ministry. Specific Recommendations are made regarding long-term care homes’ use of agency nurses (Recommendations #11-13); home care service provider obligations (Recommendations #14-18); and the role of the Ministry (Recommendations #19-31).

 

  • LHINS/Ontario Health, College, Coroner, and Ministry Recommendations. Recommendations #32-39 are directed toward Local Health Integration Networks (“LHINs”) and providers and coordinators of home care services, and thereby to Ontario Health, once it takes over this role. One of the Recommendations is for the LHINs to adopt a common electronic events reporting system and to train staff and service providers on its use. Recommendations #40-49 are directed to the College and Recommendations #50-61 to the Office of the Chief Coroner/Ontario Forensic Pathology Service. Recommendations #62-63 suggest an expanded leadership role for the Ministry and improved communication with the LHINs/Ontario Health.

 

  • Health Care Serial Killer Phenomenon. Building awareness of the “healthcare serial killer” phenomenon is addressed in Recommendations #64-73 (a phenomenon used to describe murders committed by individuals working as health care professionals). The Inquiry heard evidence that 90 healthcare serial killers have been convicted in the USA, Canada, and Western Europe since 1970, but the phenomenon has been documented since the 1800s.

 

  • Number of Registered Staff. It is recommended that the Ministry conduct a study to determine the adequate levels of registered staff in the long-term care homes on each of the day, evening, and night shifts, table the study in the legislature by July 31, 2020, and increase funding accordingly (Recommendation #85).

 

  • Detecting Deaths. Suggestions for improving the detection of intentionally caused resident deaths are covered in Recommendations #86-91.

Conclusion

The Report highlights the dedication and commitment of individuals working in the long-term care system under pressure and with limited resources. The Report highlights improvements that were implemented by stakeholders during the Inquiry and prior to the release of this Report, including the formation of a working group on medication management systems in long-term care homes, and the increase in the amount of information available from the College about nurses’ employment history, and stakeholder-led initiatives that predated the Inquiry, such as a medication safety pilot project and the clinical support tools program.

The Report expresses hope that the Inquiry and the Report can rebuild Ontarians’ shattered trust in the long-term care system.

[1] The Government of Ontario recently divided this Ministry into two, appointing a separate Minister of Long-Term Care in addition to what is now called the Ministry of Health. This blog post uses the language of the Report, which references both Ministries jointly.

Now Underway – Consultation on a Future Framework for Palliative Care in Canada

The federal government passed a private member’s bill (C-277), the Framework on Palliative Care in Canada Act, on December 12, 2017. As required by the Act, the federal government is consulting on the future of palliative care in Canada – specifically, in the context of the availability of physician-assisted death. The goal is to develop a framework for access to high quality palliative care in hospitals, home care, long-term care facilities and residential hospices.

According to is website, the federal government is now seeking input from health care professionals across Canada, health system experts, caregivers, people living with life-threatening illnesses, and interested Canadians about their long-term vision for palliative care in Canada, including access, education, support and training for caregivers. The consultation seeks ideas and experiences on the following topics:

  • Definition of palliative care
  • Advance care planning
  • Person and family-centred care
  • Challenges facing people living with life-threatening illness
  • Consistent access to palliative care
  • Special populations (i.e., Indigenous, infants, children and youth, homeless, rural and remote communities, LGBTQ2, people living with disabilities, immigrants and refugees, and others)
  • Health care provider education, training and supports
  • Caregiver training and supports
  • Community engagement
  • Bereavement

This is a great opportunity to have your organization’s voice heard and to give your administrators and health care staff a chance to contribute to the development of public policy.  The voices of health care providers, caregivers and their families are also an integral part of these consultations about the future of palliative care in Canada.

Submissions are due by July 13, 2018 and may be made in writing or on-line.  For help making a submission, please get in touch with me: spalter@ddohealthlaw.com. If you are interested in reading the Act, it is available here: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-277/royal-assent

By December 11, 2018, the report of the federal Minister of Health that sets out the framework for palliative care must be presented to the House of Parliament and 10 days after that the report must be posted on Health Canada’s website.  Watch this blog to stay informed.

 

 

Progressing Toward the Regulation of Psychotherapy in Ontario

The regulation of psychotherapy has been more than 10 years in the making but significant strides have been made recently toward full implementation.  Further to the Minister of Health and Long-Term Care’s direction in December of 2017, the College of Registered Psychotherapists of Ontario created a draft regulation identifying therapy modalities that its members could use when providing psychotherapy services. The proposed regulation (under the Psychotherapy Act) was released in April and comments are due by June 15, 2018. The draft regulation is available here: https://www.ontariocanada.com/registry/view_posting.jsp;jsessionid=mAnot1q4ZrYdoGo6sV7mSaT?language=en&postingId=27366

There are six categories of treatment modalities identified in the proposed regulation and they are fairly broad. In order to give some additional clarity to the regulation, and further to the Minister’s direction, the CRPO conducted a public consultation about its draft policy identifying activities that do not fall within the controlled act of psychotherapy. The draft policy is available here: https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Psychotherapists who are not currently registered with an RHPA or social work college whose members are permitted to practise psychotherapy must determine whether their practice falls within one of the broad prescribed modalities identified in the draft regulation; if yes, the practitioner must take steps to become registered with a college permitting such practice (such as the CRPO) or they must take steps to restrict their practice.

In order to provide additional guidance to currently unregulated psychotherapists to help them determine whether they are providing the controlled act of psychotherapy, and therefore whether they need to take steps to register before December of 2019, the CRPO also released a self-assessment tool for providers.  A link to the self-assessment tool is found here https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Prior to the CRPO’s public consultation about the draft regulation, the Health Professions Regulatory Advisory Council reported to the Minister about clarifying the meaning of the controlled act of psychotherapy. That report, entitled “The Therapeutic Relationship as the Cornerstone of Psychotherapy” was released to the public in March of 2018 and is available on the Council’s website.

The CRPO regulation and policy represent a significant move forward toward comprehensive regulation of psychotherapists in Ontario.

For more information, contact Simmie Palter @ spalter@ddohealthlaw.com

The Controlled Act of Psychotherapy Now in Force

The controlled act of psychotherapy was proclaimed in force on December 30, 2017. It was drafted into the Regulated Health Professions Act in 2007. Controlled acts are acts that are considered inherently dangerous and are restricted to those authorized to perform them by law, or their delegates.  In order to perform a controlled act, you must be a member of a regulatory college authorized to perform that Act, or be a delegate of an authorized professional.

In 2007, the Psychotherapy Act was enacted and it created the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario.  Companion legislation was amended so that the controlled act of psychotherapy would be authorized to:

  • Nurses
  • Physicians
  • Psychologists
  • Occupational therapists
  • Registered psychotherapists
  • Social workers

However, these provisions were not proclaimed in force, nor was the definition of the controlled act of psychotherapy, until December 30, 2017.

During the intervening period, the College of Psychotherapists was directed to work with 5 other regulatory colleges whose members were to be authorized to provide psychotherapy, to define the meaning of the controlled act. These other colleges are the College of Nurses of Ontario, the College of Psychologists of Ontario, the College of Physicians and Surgeons of Ontario, the College of Occupational Therapists of Ontario and the Ontario College of Social Workers and Social Service Workers.  In June of 2016 the colleges[1] published a document entitled “Understanding the Controlled Act of Psychotherapy[2]”.

In the fall of 2017 the Minister of Health and Long-Term Care referred the matter to its advisory council. The Minister asked HPRAC to further clarify the meaning of the controlled act and to build on the clarification document published by the Colleges[3]. HPRAC submitted its report to the Ministry in November of 2017 but that report has not been released by the Ministry.

In December, the Ministry notified the sector (via Bulletin) that individuals who practise psychotherapy but are not registered with one of the authorized colleges have until December 31, 2019 to determine if they are practising psychotherapy. If so, they must apply for registration with one of the colleges whose members are authorized to perform the controlled act[4]. The Bulletin also notes that the College of Psychotherapists has been instructed by the Ministry to further define the controlled act of psychotherapy and to identify practices that may be exempt from the controlled act of psychotherapy.

Finally, the Bulletin notes that the proclamations align with the Ministry’s objectives to increase accessibility to structured psychotherapy services for individuals with anxiety and depression.  The proclamations are certainly consistent with Health Quality Ontario’s recent recommendation to increase the pool of providers of psychotherapy in order to address prevalent mental health issues such as anxiety and depression. The bulletin further indicates that the Ministry will work with Health Quality Ontario and other stakeholders to provide access to structured psychotherapy services.

 


[1] All colleges except the CPSO participated in the development of the guidance document.
[2] Available on line at https://www.crpo.ca/controlled-act-of-psychotherapy/.
[3] The Minister’s referral letter can be found on line at http://hprac.org/en/links/resources/Letter-to-HPRAC_Aug-4_17-1.pdf .
[4] See the MOHLTC Health Bulletin entitled “New Psychotherapy Requirements to Support Patient Care and Safety”  dated Dec 21, 2017, available on line at http://www.health.gov.on.ca/en/news/bulletin/2017/hb_20171221.aspx .

 

Professionalism and the Public Interest

The Alberta Court of Appeal recently confirmed a health profession regulator’s authority to enact regulations in the public interest, even if no harm is occurring. In Sobey’s West v. College of Pharmacists of Alberta (2017 ABCA 36), Sobey’s sought judicial review of a College policy (incorporated into a regulation to give it the force of law) that prevented pharmacies, pharmacists and pharmacy technicians from offering inducements to clients that required the intervention of a pharmacist or pharmacy technician. Sobey’s acquired Safeway and continued Safeway’s policy of permitting Air Miles loyalty points to be collected by clients filling prescriptions at their pharmacy. While no complaints were made to the College about the loyalty points program, Sobey’s West sought judicial review of the policy, arguing that it curbed competition. At the time, Sobey’s West was challenging a similar policy in the court in British Columbia.

The Alberta Court of Queen’s Bench (the trial division in Alberta) found that the College’s policy was ultra vires (outside the authority of) the College. The Alberta Court of Appeal reversed the trial judge’s decision, indicating that the College has legislative authority to enact law that protects the public interest. Therefore, the policy prohibiting the collection of Air Miles loyalty points on prescription drug purchases was within the jurisdiction of the College. This decision is consistent with Sobey’s West v. College of Pharmacists of B.C. (2016 BCCA 41), where the B. C. Court of Appeal found a similar college policy was within the authority of the College to make (and reversed the B.C. trial division decision).

The reasoning of these decisions is consistent with the Supreme Court of Canada’s decision in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care) (2013 SCC 64), where the Supreme Court of Canada upheld provincial drug benefit legislation and regulations whose intent was to increase transparency in generic drug pricing on the grounds that the regulations were consistent with the stated purpose of the enabling legislation.  The court explained, in a unanimous decision, that to be found ultra vires, regulations must be shown to be inconsistent with the objective of the enabling statue or the scope of the statutory mandate. The court noted that there is a presumption of validity regarding regulations, which means that the regulations should be reconciled with the enabling statute in manner that is possible to construe them as intra vires and that the onus of proving them ultra vires is on the challenger – not on the rule-maker to justify them.  The court also makes a point of noting that it is not the court’s role to assess the policy merits of the rules nor the partisan, social, or economic issues that may have been the catalyst for their creation.

Does the decision of the Alberta Court of Appeal, together with the Supreme Court of Canada’s presumption of validity for regulations, imply that regulators have a wide berth to enact restrictive rules as a matter of public interest, and that such rules will be difficult to challenge on judicial review?  While regulators do have considerable latitude to enact regulations as a matter of protecting the public, each challenge to a regulation will turn on the particular wording of the regulation or policy in question, and on the precise wording of the enabling statute.  In the past, regulations preventing the charging of block fees by physicians were judged to be ultra vires the Medicine Act because the court found they were made for the purpose of preventing extra-billing rather than for protecting the public, thus departing from the statutory mandate. See:  Szmuilowicz v. Ontario (Minister of Health), (1995) 125 D.L.R. (4th) 688 (Gen. Div.).

Similarly, regulations preventing dentists from advertising their services using content that was informational, accurate, and helpful to individuals choosing a dentist were struck down as contrary to the right to freedom of expression protected by the Charter: see Rocket v. Royal College of Dental Surgeons of Ontario, (1990) 71 D.L.R. (4th) 68 (S.C.C.).

In a third case, regulations preventing inactive physiotherapists from practising beyond their scope of practice were found by the court to be unauthorized:  see Lefko v. College of Physiotherapists of Ontario, (1998) 116 O.A.C 86 (Div Ct).

These cases show that professional regulations are not impossible to successfully challenge.

Consequently, it is recommended that regulators, when seeking enactment of such rules into legislation, carefully draft the proposed rules to ensure that they are consistent with the regulator’s statutory mandate and do not exceed the scope of authority granted by the enabling legislation.

For help in drafting regulations for health professions, please feel free to get in touch: spalter@ddoheatlhlaw.com.

PHIPA: Mandatory Breach Notification

The Information and Privacy Commissioner of Ontario (“IPC”) recently released a guidance document explaining when privacy breaches must be reported to the Commissioner. The Guidelines are entitled “Reporting a Privacy Breach to the Commissioner: Guidelines for the Health Sector” (September 2017).  The Guidelines also require custodians to begin tracking statistics on privacy breaches as of January 1, 2018 and to begin filing an annual report with these statistics on March 1, 2019.

When does the requirement to report certain breaches to the IPC take effect?
These reporting requirements come into effect October 1, 2017, via amendments to the PHIPA Regulation.

Who reports?
Health information custodians with custody and control of personal health information.

What is to be reported?
Any of the categories of breaches described in the PHIPA regulation.

In the Guidelines, the IPC breaks down the categories of mandatory privacy breach reports and gives some examples of circumstances that must be reported. There are 7 categories of breaches – but only one category is necessary to trigger the requirement to report. The categories are:

  • use or disclosure without authority
  • stolen information
  • further use or disclosure without authority after a breach
  • pattern of similar breaches
  • disciplinary action against regulated health professionals
  • disciplinary action against non-College members
  • significant breach.

Remember:
These Guidelines apply to reports that must be made to the Commissioner and they are not applicable to notification of individuals whose privacy has been breached.

When should notice be given?
The Guidelines do not specify when notice is to be given; however, it is wise to make such reports as soon as reasonably possible after the breach occurs. The IPC may be able to offer guidance toward mitigating the effects of the breach.

The Guidelines are available here:

https://www.ipc.on.ca/wp-content/uploads/2017/08/health-privacy-breach-notification-guidelines.pdf

Contact us for guidance on when to report privacy breaches or to participate in our Privacy Officer training.

For more information contact mjdykeman@ddohealthlaw.com or spalter@ddohealthlaw.com.