Management at three nursing homes failed to protect vulnerable residents and staff, alleges nurses’ association in court filing
Three Ontario nursing homes with devastating COVID-19 outbreaks that have killed a total of at least 50 seniors kept infected residents among the healthy, allowing the virus to spread, allege newly filed court documents.
The Ontario Nurses' Association (ONA) has asked a Superior Court judge to order the homes, including Eatonville Care Centre in Etobicoke, to stop "breaching" directives made by Ontario's chief medical officer meant to protect the vulnerable seniors and the staff who serve them.
The nurse association's court filings allege the long-term-care homes rationed personal protective equipment (PPE) such as N95 masks, locking them in cupboards. In the early days of the pandemic at one home, management chastised staff who wore surgical masks, saying they would "scare the residents," the ONA alleges.
All three homes have made headlines in recent weeks as outbreaks spread and death tolls climb. At Eatonville Care Centre in Etobicoke, at least 31 residents have died. At Anson Place in Hagersville, at least 19 residents have died. At North York's Hawthorne Place, the ONA says there are six residents with COVID-19.
The homes, operated by Rykka Care Centres, continue to flout "best practices" and preventative measures, the court application alleges.
"As a result, the outbreaks have occurred and spread and are out of control and resident and staff safety is at imminent risk. It has and will continue to result in harm including death for residents and to staff working at these facilities as occurred," ONA chief executive officer Beverly Mathers said in an affidavit filed in the Superior Court of Ontario.
The managing partner of Rykka is Responsive Group. Officials from that organization did not respond to questions from the Star by deadline.
In an April 9 letter sent to the ONA, the executive director of Anson Place said, "We want to assure you that the safety of our residents and employees is our highest priority."
The letter said the home is working with the medical officer of health and public health authorities to best "protect our residents and staff."
The coronavirus continues to tear through Ontario's nursing homes, where at least 933 residents and 530 staff have tested positive for COVID-19. Premier Doug Ford has vowed to put an "iron ring" around the homes, and the province this week put in place more stringent measures to stem the virus's spread.
The ONA's court filing alleges the Rykka-operated homes did not follow a mandatory order issued by Ontario's chief medical officer of health stating that long-term-care homes must use staff and resident "cohorting to prevent the spread of COVID-19."
All three Rykka homes subject to court action are older buildings that house seniors "with up to four residents in a single room," the ONA said in court filings.
In the April 9 letter to the ONA, the executive director of Anson Place said all residents were being isolated and assumed to have COVID-19, regardless of whether they had been tested.
"Like many nursing homes in Ontario, there are some ward rooms which have four residents. In these rooms a partition separates the room into two, having two residents on each side. We are protecting these two residents with a privacy curtain between these beds which will mitigate the spread of COVID-19," the letter read.
Anson Place also "enhanced our cleaning measures" and increased screenings of staff and residents, according to the letter.
The nurses association alleges Anson Place and the other two homes also have not made N95 respirators readily available for staff "providing care to residents with confirmed, suspected or presumed COVID-19.
"This includes times when these (nurses) are required to deal with symptomatic residents who are coughing or choking," the ONA's Mathers said in her affidavit.
At Hawthorne Place in North York, Mathers alleges that nurses and other staff were initially directed by a manager "not to wear even a surgical mask as it would scare the residents." N95 respirators were kept under lock and key, and staff working late shifts could not access even basic masks, the ONA alleges.
At Anson Place in Hagersville, when a COVID outbreak was declared on March 29, the nursing home "did not put its own pandemic plan into effect " and only very minimal PPE was provided to staff," the court filing alleges.
"Long-term-care nurses are very much the front-line workers in this pandemic " They need N95 respirators for this pandemic. They should not have to beg for them and have to run around searching for them in locked cabinets," Mathers said in the affidavit.
She said nurses and health-care workers in these facilities and others are getting sick at an "alarming rate."
In the April 9 letter to the ONA, the executive director said all Anson Place "employees in the home are wearing surgical masks and gowns," as well as gloves and eye shields, when attending to residents.
The staff will wear N95 masks "in some instances," such as when performing a swab test, the letter said, adding that the home has "ample supply of PPE and will continue to protect its employees and residents."
In long-term-care homes, the Public Health Ontario guidelines say N95 masks are to be used when, for example, suctioning the airways of a resident with or suspected to have COVID-19. The guidelines also say the procedure should be performed in a single room with the door closed.
The test for COVID-19, when a long narrow swab is inserted into the nose, does not require an N95 mask, the guidelines say. When performing a nasopharyngeal swab, staff should wear eye goggles or a mask, along with an isolation gown and gloves, the guidelines said.
In its court filings, the ONA says given the scientific uncertainty surrounding how this novel virus can be transmitted, "the provision of N95 respirators is a reasonable precaution that Ontario employers should be taking for health-care workers."
"At the very least, this life-saving personal protective equipment must be made readily available to and accessible by ONA's members who provide care to suspected or known cases of COVID-19," the ONA says in its court application.
The association also filed a second application against Primacare Living's Henley Place in London, saying the house has an outbreak and staff have "not been provided with readily available access" to PPE such as N95 respirators when providing care to residents with confirmed or suspected cases of COVID-19. The court document said an ONA member was required to care for a resident with COVID-19 without access to an N95 respirator and "was terrified for her safety."
Jill Knowlton, Primacare's chief operating officer, said Henley Place follows government guidelines on the use of N95 masks. All staff in the home have been measured and fitted for N95 masks and the home keeps a supply for individual workers in the room where medication is stored and the office that belongs to the director of care, Knowlton said. The registered nurse on shift has the keys to those rooms, she added.
Primacare started "universal masking" for all its staff, and initiated a one-site policy for workers who are employed by multiple homes, before the government issued directives for both, Knowlton said.
So far, the outbreak has been contained to one unit, where eight residents have COVID-19, with the last positive test on April 11, she said. As of Friday afternoon, test results coming back since then had been negative, she said.
Of the 36 staff tested, two have COVID-19, while 23 tested negative, six results are pending and five others were swabbed on Friday, she said. The first resident to test positive for COVID, a woman, was in palliative care in hospital but is now improving, Knowlton said.
The nurses association said it has filed numerous complaints with the Ministry of Labour about the actions of different nursing homes but says the government has not provided any immediate or meaningful enforcement, forcing the organization to turn to the courts.
Occupational health and safety inspectors "are not attending to the facilities in a timely way. No inspector has entered a long-term-care facility to my knowledge due to the physical distancing measures," Mathers said in her affidavit.
Instead, ministry inspections are done by phone, and the regulator relies upon the nursing home's management to find workers to speak to, the ONA alleges.
A spokesperson said the ministry could not comment on a matter before the courts but said it has conducted more than 500 COVID-related inspections in the health-care sector and issued 22 orders.
"The health and safety of Ontarians is the government's top priority," the spokesperson said in a statement.
Jesse McLean is a Toronto-based investigative reporter. Reach him at jmclean@thestar.ca. Follow him on Twitter: @jesse_mclean
Moira Welsh is a Toronto-based investigative reporter. Follow her on Twitter: @moirawelsh