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Neglect of aged an ‘outrage’


The Ontario government is helping to break its own laws when it lets nursing homes leave elderly residents lying for hours in urine-soaked diapers, according to a legal opinion prepared for the Ontario Federation of Labour.

Federation president Wayne Samuelson says he has sent letters to all major party leaders warning that unless whoever wins next week’s election moves quickly to clean up the problem, the OFL will “pursue any and all legal recourse.”

“It’s absolutely outrageous,” he said in an interview.

“People shouldn’t have to end up in these situations. If these were kids in a child-care centre, there would be outrage.”

Written by Toronto lawyers Mary Cornish and Jo-Anne Pickel, the 29-page brief concludes that most nursing homes in the province violate laws, regulations and binding contractual obligations that require long-term care institutions to keep patients “clean and dry” and “promote their dignity and independence.”

They say the so-called 75 per cent rule, whereby a diaper is changed only after it is three-quarters full of urine, contravenes the province’s human rights code against discrimination on the basis of age, disability and sex (elderly women suffer from incontinence more than men). And, they say, it may also violate the Charter of Rights and Freedoms.

Nursing home administrators who insist that staff leave immobile residents festering in their own urine could also be charged with professional misconduct, they say.

During the 2003 election campaign, the then opposition Liberals promised to introduce a new minimum standard of care in nursing homes to deal with the problem. Later that year, and after a Star series detailing the deplorable state of nursing homes caused him to burst into tears, newly appointed Health Minister George Smitherman promised a “revolution” in long-term care.

In the end, Smitherman never did bring in his promised minimum care standard. What he did do was write new nursing home legislation (which has been passed but not yet proclaimed into law) that, among other things, would limit the use of physical restraints on residents.

In the legal argument, the reason for the 75 per cent rule is simple, the lawyers say. Queen’s Park, which is responsible for funding most long-term care, doesn’t provide nursing homes with enough money to take care of their approximately 75,000 elderly residents.

“The government has set standards that the nursing homes aren’t following,” said Cornish yesterday after a copy of the report was released to the Star. “But the nursing homes can’t follow these standards because the government doesn’t give them enough money for supplies and staff.”

The nursing home diaper problem is not new. The government allocates only $1.20 a day per resident for what are called incontinence products. As well, rules governing nursing homes were loosened in the 1990s when then premier Mike Harris’s Conservatives eliminated a regulation requiring 2.25 hours of personal care per resident per day.

The result has been that nursing home administrators routinely insist that diapers be left on incontinent residents as long as possible so that they can make do with fewer staff. Diaper manufacturers make this practice easier by including a strip on the product that changes colour when it is about three-quarters full of bodily waste.

Nursing home staff have long complained that they are liable to discipline if they change diapers too often. In a report two years ago, and distributed to every MPP, the OFL cited one instance where supervisors pulled used, sodden diapers out of the garbage and weighed them to ensure that staff were adhering to the 75 per cent rule.

In another case, nursing home workers received free pizzas if they kept diaper use down.

In addition to the legislation Smitherman introduced, the government also instituted surprise inspections and hired 4,900 new workers. This allowed nursing homes to keep pace with the 5,000 new beds that the government opened. But nursing home operators said it did not give them enough to deal adequately with the numerous needs of the frail elderly, such as incontinence.

Reached yesterday, a health ministry spokesperson said that anything causing a nursing home resident discomfort is deemed unacceptable and that if patients (some of whom are suffering from dementia) or their families know of such treatment, they should complain.

In their brief, the two lawyers say they were told that families who complain on behalf of incontinent residents usually receive more diapers but that those who try to be agreeable get nothing.

In this election campaign, the New Democrats are saying they want nursing home residents to receive a minimum of 3.5 hours of personal care a day, which would require the hiring of considerably more staff.

The Conservatives say they would provide all residents with ensuite bathrooms, but are silent on the questions of staffing, standards of care and diapers.