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Long-Term Care Homes - General. Corporation of County of Simcoe v. Ontario
In Corporation of County of Simcoe v. Ontario (Div Court, 2022) the Divisional Court considered basics of the Long-term Care Homes Act, 2007 (LTCHA):Statutory Scheme: The Act and the Regulation
[4] Long-term care homes (“LTCHs”) provide residential accommodation and 24/7 nursing and personal care to individuals who require assistance with the activities of daily living. Residents of LTCHs are commonly elderly and often have some degree of dementia or cognitive impairment, along with additional complex medical needs.[3] The focus of the Act is the protection of residents in LTCHs.
[5] Part II of the Act, “Residents: Rights, Care and Services”, deals with the rights of residents of LTCH and the care and services they are entitled to. Licensees (LTCH operators) must ensure that certain programs and services are provided: nursing and personal support services; restorative care; recreational and social activities; dietary services and hydration; medical services; information and referral assistance; religious and spiritual practices; accommodation services; a volunteer program; as well as staffing and care standards.[4] This Part also requires a licensee to ensure that residents are protected from abuse and neglect by the licensee or the licensee’s staff.[5]
[6] Ministry inspectors have broad powers to conduct inspections under ss. 146 and 147 of the Act. Where they determine a home is in non-compliance, they must take at least one of the enforcement actions set out in s. 152(1). An inspector who has made a finding of non-compliance may issue a written notice, a voluntary plan of correction for achieving compliance, a compliance order ordering a licensee to achieve compliance with a requirement under the Act or to submit a plan to do so, a work and activity order, or a director referral. A director referral is the most serious action an inspector can take. It is done where an inspector recommends an enforcement action that exceeds their authority.[6] An inspector is required to discuss a director referral with their manager before issuing it.[7]
[7] Section 299 of the Regulation sets out the mandatory factors inspectors and the Director are required to take into account in determining what action(s) to take upon a finding of non-compliance with the Act or the Regulation:i. the severity of the non-compliance;
ii. the scope of the non-compliance; and
iii. a licensee’s history of compliance, in any home. [8] When an inspector determines there is non-compliance with the Act or the Regulation, the Ministry’s Long-Term Care Homes Quality Inspection Program requires all inspectors to apply a standardized approach to determine the appropriate enforcement action with the assistance of a Ministry tool called the judgment matrix. The judgment matrix takes into account three factors:(a) the level of risk the non-compliance poses to residents;
(b) how widespread the risk is, or its scope, based on questioning of three random residents; and
(c) the home’s history of compliance. [9] These three data points are plotted onto the judgment matrix and used to determine the appropriate enforcement action.
[10] In determining the severity of an incidence of non-compliance, the judgment matrix considers whether the non-compliance relates to a Key Risk Indicator. Key Risk Indicators are contraventions of the Act and the Regulation that have been identified by the Ministry as meriting the assignment of a higher severity level. Examples of Key Risk Indicators include abuse, infection prevention and control, medications, nutrition care and hydration, reporting, responsive behaviours and altercations, and skin and wound care.
[11] The Director is authorized to take several enforcement measures under the Act (which he or she can do with or without an inspector’s referral such as:(a) issue a compliance order (s. 153(1));
(b) issue a work and activity order (s. 154(1));
(c) order that funding be returned or withheld (s. 155(4));
(d) issue a mandatory management order (s. 156(1));
(e) revoke a licensee’s licence to operate a LTCH (s. 157(1)); or
(f) direct the placement coordinator to cease admissions (s. 50(1)). [12] The judgment matrix requires an inspector to review a LTCH’s compliance history for 36 months prior to the first day of the inspection to determine the appropriate enforcement action. The inspector is required to look at whether there are any incidents of non-compliance related to the same subsection of the Act or Regulation as well as the overall compliance history. The Ministry has ascribed six levels to the compliance history. The compliance history will determine what enforcement actions are available to the inspector and guide the inspector regarding whether the enforcement action should be reduced, remain the same or be escalated.
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[30] Neither the Act, nor the Regulation, require the Ministry to provide any notice to a licensee before taking any enforcement action under the Act. Every compliance order issued contains information about how to appeal it, and the Act provides three levels of “appeal” for a compliance order and two levels of appeal for a mandatory management order. While there is no right of appeal from a Direction, the three director referrals issued by the inspectors after the April/May 2021 inspection gave notice to the applicant that there was a potential for further enforcement action by the Director.
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