By Bruce Campbell, Mark Winfield and Pat Armstrong
Updated version published in the Hamilton Spectator, May 23, 2020.
May 12, 2020
Long-term care facilities, have emerged as the epicenter of the COVID-19 pandemic in Canada. Rates of COVID-19 infections have been disproportionately worse than in other developed countries. In Ontario, over 1000 care facility residents, and a number of front-line staff have died so far. Care-home residents account for more than eighty-per cent of the total COVID-19 fatalities Canada. The situation represents an unprecedented catastrophe in the history of the province.
Not surprisingly, there have been growing calls for a public inquiry into the management of the COVID-19 outbreak in the sector. The extraordinary scope and scale of the disaster would seem to warrant such a response. But there are no guarantees there will actually be one.
Recent experience suggests that governments are becoming reluctant to call formal inquiries into major disasters. The 2013 Lac-Mégantic tragedy, in which 47 innocent people were incinerated in Canada’s worse railway accident since Confederation, seemed an obvious candidate for a judicial inquiry. Yet no inquiry was held by either the federal or Quebec governments.
So far, all Premier Ford has committed to is an undefined “review” of the situation. In the meantime, there have been demands for criminal investigations. Class-action lawsuits on behalf of victims and their families are in the works.
Civil and criminal proceedings may provide some important insights into the regulatory and policy failures leading in the long-term care sector. At the same time, they are subject to significant limitations.
Civil proceedings may be settled behind closed doors. Even in the event of criminal trials, government or industry decision-makers may not be called to testify. The Lac-Mégantic case, for example, followed a recent, disturbing trend of prosecutors attempting to place criminal responsibility for such disasters on front-line employees, as opposed to the managers and regulators under whose polices and decisions those individuals had to function.
It is already painfully clear that the long-term care sector was hopelessly unprepared for a pandemic. That was despite earlier experiences with SARs, long-standing warnings of the likelihood of similar global outbreaks and concerns over staffing practices raised by the Wettlaufer inquiry.
Itinerant staffing models, where operators evaded employing caregivers on a full-time basis to avoid paying benefits and other costs associated with regular employees, forced staff to have to work in multiple facilities on a casual basis to make a livable income. That appears to have been a significant factor in the spread of COVID-19 among facilities. Stocks of personal protective equipment turned out to be grossly inadequate, as was training and support to deal with a major infectious disease outbreak.
Independent unannounced inspections of facilities had declined dramatically, to the point where inspectors were only responding to complaints. For-profit facilities, whose role in the sector was allowed to expand significantly in the mid-1990s, have emerged as having COVID -19 death rates almost four times those operated by governments or non-profit providers, according to current estimates.
Given the scale of the disaster, it is clear that a fundamental rethinking of care models for the most vulnerable members of society, including staffing, funding, oversight and inspection practices and the roles of for-profit operators in the system, is essential.
A formal public inquiry would be the best vehicle to investigate these questions. Although inquiries cannot bring criminal or civil indictments, they can compel senior officials and politicians, senior executives through testify under oath and be cross-examined; they can access confidential documents; and they can make determinations of misconduct and assign blame against individuals or organizations.
These mechanisms allow inquiries to come to as full and complete understanding as is possible around what went wrong, essential to ensuring that the same mistakes are avoided in the future.
Secondly, an inquiry process means that those who made decisions, and those who were in a position to influence and oversee those decisions, will have to explain their actions and choices, on the public record, before victims and survivors.
Finally, in cases where there have been significant injuries, illnesses or losses of life, inquires can make significant contributions to the grieving and healing processes of survivors and the families of victims. The act of establishing of an inquiry is itself a public acknowledgement of the significance of the events and losses that have occurred. Perhaps even more importantly, they provide a structure for survivors to give meaning to their losses – specifically in making sure that there is a full public understanding of what went wrong, and what steps can be taken to prevent anyone else having to suffer the same fate.
As was the case with Lac-Mégantic, powerful forces will be arrayed against the establishment of inquiries into what has happened in the long-term care sector. Care-home operators, and government agencies who were supposed be overseeing their operations, political actors, past and present, who may be concerned that blame will fall on them for whatever failures may be identified, will all strongly resist the idea of calling formal inquiries.
In Ontario, the decision on whether to call a formal inquiry into the long-term care sectors’ handling of the COVID-19 pandemic will be a test of whether government really meant what it said about an “iron ring of protection” around the care-home sector. And whether it really is prepared to learn from past mistakes and take steps to make sure they are never repeated.
Bruce Campbell is the author of The Lac-Mégantic Rail Disaster: Public Betrayal, Justice Denied, an Adjunct Professor of Environmental Studies at York University and a Senior Fellow with the Centre for Free Expression at Ryerson University
Mark Winfield is a Professor of Environmental Studies at York University. He was an expert witness at the Walkerton Inquiry and has written extensively about the Lac-Mégantic rail disaster.
Pat Armstrong is a distinguished research professor in sociology at York University and a fellow of the Royal Society of Canada. She headed a recently completed 10-year international project on promising practices in long-term residential care