Alberta’s long-term care homes are pressing the provincial government to protect them from lawsuits related to COVID-19 outbreaks, which the industry argues could make it impossible to get insurance and continue operating.
The Alberta Continuing Care Association, or ACCA, is lobbying the provincial government to consider legislation similar to a law passed in Ontario last year, which faced criticism for making it more difficult for relatives and residents to sue for failures related to COVID-19. There have been several class-action lawsuits already filed against operators in Alberta, which has had the highest proportion of care homes with COVID-19 outbreaks in the country.
The United Conservative Party government hasn’t said whether it plans to press ahead with such legislation. Steve Buick, press secretary for the Health Minister, said the province is aware of the association’s request but hasn’t made any decisions.
The ACCA registered to lobby last month to propose “a new bill facilitating COVID-19 legal liability protection for continuing care providers,” according to a filing with the provincial lobbyist registry.
The document says current legislation does not provide explicit protection for operators “acting in good faith” beyond the provincial state of emergency. The province’s Public Health Act contains a provision that protects a range of groups, including health authorities, health care workers and teachers, from liability during a public-health emergency if they are acting in good faith.
The association’s executive director, Wayne Morishita, wasn’t available for an interview, but the group sent a written statement that noted care homes have continued operating through the pandemic while following numerous COVID-19 health orders and other requirements.
Revera Inc., one of Canada’s largest long-term care operators, also registered to lobby for legislation to protect the industry’s ability to get insurance.
Donna Duncan, CEO of the Ontario Long-Term Care Association who is also on the board of the Canadian Association for Long Term Care, said the industry wants to ensure it can get insurance but she said her group isn’t trying to prevent families from seeking compensation from negligent operators.
“If we don’t have liability coverage in our homes, we can’t operate,” she said.
“Our families need to have access to due process. ... Our issue at this point is that if a home has no insurance and there are going to be settlements, it may well be that the only way they can cover that off is to close and sell the asset.”
She said the national association is also asking governments to support the industry with an insurance backstop, similar to a system in the United States. The program is designed to cover additional risks to insurers.
Ontario’s Progressive Conservative government passed legislation last year to protect front-line workers and small businesses that are following public health rules and where COVID-19 exposure may occur inadvertently. The long-term care industry was a vocal proponent of the bill.
Premier Doug Ford defended the legislation last fall, promising that it would not protect bad actors. Critics said the law would make it significantly more difficult to sue care home providers because it raised the standard for a successful lawsuit to “gross negligence.”
B.C. has similar rules in place, protecting essential service operators, including long-term care homes, from liability for COVID-19 transmission so long as operators are following all relevant health orders. Like the Ontario legislation, B.C.’s regulations don’t protect operators found to be “grossly negligent.”
In Alberta, more than 1,000 long-term care residents have died of COVID-19, representing more than 60 per cent of all COVID-19 deaths in Alberta.
There have been outbreaks at almost three-quarters of the province’s facilities – by far the highest rate in Canada – according to the National Institute on Ageing, a Ryerson University think tank. Nationally, the institute says, long-term care residents account for 69 per cent of all deaths, with 43 per cent of facilities reporting outbreaks.
Clint Docken, a Calgary lawyer who has filed class-action lawsuits against several providers, most recently a $25-million proposed class action against Brentwood Care Centre in Calgary, said providing care homes with legal immunity would hurt the legal rights of care home residents and their families.
“It’s the one hope that they’ve got that there may be some accountability, and they would lose that last hope,” he said.
Mr. Docken said such legislation could also prevent provincial governments from seeking compensation for increased health care costs related to negligent care-home operators.
Lori Sigurdson, seniors and housing critic for Alberta’s Opposition New Democrats, said it would be a mistake to make it more difficult for families to take legal action against a care home that fails to prevent a COVID-19 outbreak.
“We know that there area a lot of challenges in the sector and some people feel really abandoned by our provincial government and some of these care homes in the care of their loved ones,” she said.
“So I think that it’s highly appropriate that family members can seek justice by being able to challenge the care in these centres.”
Ms. Sigurdson said many of the issues that have been brought to light over the past year existed long before the pandemic. She said the standard set out in the Ontario lawsuit, that a plaintiff must show “gross negligence,” is too high of a burden.
“It shouldn’t be just in exceptional circumstances,” she said. “It should be something that families of loved ones have the right to bring to our court system.”
The chief policy officer of the Canadian Association of Retired Persons, Bill VanGorder, agreed with the association that governments need to ensure care homes can obtain adequate insurance, but he said the solution isn’t to prevent lawsuits.
Rather, he argued the COVID-19 pandemic has underscored the need for consistent national and provincial standards for care homes.
“One of the problems at the moment is there are not standards in the provinces or across the country that long-term care could be asked to live up to,” he said.
“So there are no common standards and there is no support for [operators] when they have high insurance costs. Everybody is between a rock and a hard place.”
He noted that Prime Minister Justin Trudeau issued a mandate letter last month to the federal Minister of Seniors, Deb Schulte, that instructed her to establish national standards for long-term care.
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