'We wouldn't know if they were going to die or not': Ministry defends LTC inspections

The Ministry of Long-Term Care took several months to respond to some of the vital challenges presented by the first and second waves of the pandemic that have devastated Ontario's seniors' homes and killed thousands.

That was the upshot of testimony heard at the ongoing long-term care commission, where Ministry of Long-Term Care senior manager Lynne Haves defended and explained inspection and enforcement actions that were or were not taken as long-term care homes experienced crisis conditions.

The commission was especially interested in how long-term care home inspections were done, what it would actually take for an LTC home to warrant an immediate inspection, and whether the ministry had sufficient staffing levels to meet inspection needs.

The commissioners and their counsel tried to ascertain greater clarity on the issues, suggested that the standards were vague, and expressed surprise at the long timelines needed to address issues in the midst of a crisis.

That includes the fact that it took until Jan. 18, 2021 — almost one year after the coronavirus was declared a global health emergency — for the Ministry of Long-Term Care to consider all LTCs with COVID-19 outbreaks classified to be level 4, or an "immediate jeopardy situation" that prompts an immediate inspection. This is despite the fact that in outbreaks in the first wave 30 per cent of residents who contracted the virus died and in the second wave 20 per cent did.

It also took the ministry until October 2020 to hire more long-term care inspectors after, in late-2019, the staffing complement of full-time-equivalents had been reduced because the ministry did not have sufficient funding to meet those numbers, the commission heard.

Haves, the top civil servant who provided testimony on the subject, defended the steps that were taken and described the government's thinking, including its tiered framework for prioritizing inspections based on risk.

"We have a definition for our inspectors," she explained in an interview via Zoom on Feb. 3. "So if it's a level 4, they need to take a look at the situation. If it places the residents or the group of residents in an immediate jeopardy/risk, and if it has caused or likely to cause serious consequences, injury, harm, impairment, or could result in death. So we're very specific on our definition of what is serious risk or harm and risk."

The stated level 4 definition also includes: "A situation that the licensee is not taking immediate action to appropriately rectify the issue or has failed to intervene to prevent the situation from unfolding. This level includes situations that require an immediate visit to the long-term care home."

But when asked about specific scenarios to understand those definitions, like if there was widespread mould or cockroaches in a long-term care home, Haves declined to say whether that home belonged in level 4, saying that it's about a larger context. "I would need more details to be able to answer if we could change that to a level 4 or not," she said of those specific examples.

Haves said she would have to "double-check" to see if the appropriate levels were being applied during the first wave, but that not all homes in outbreak would reach level four status.

From March to May, inspectors were not going into homes in outbreak, but calling them instead, Haves said.  After that, the inspectors would determine by phone if an immediate inspection was required.

"We were supporting monitoring every home that was in outbreak, reaching out to them. And we would have received information about what the individual partners were also doing in those homes, and that would help us determine if an immediate inspection is required," Haves said.

Commission Chair Frank Marrocco checked in at this point to verify what he heard. "In terms of the follow-up, it's dependent entirely, then, on the answers to those questions, which are given by — the answers are given either by the [long-term care home] executive director..." he asked Haves, who confirmed that was the case.

Marrocco later questioned the wisdom of this setup. "If nobody is going in, then whatever's being reported [by phone] is being reported, but nobody's going in to do anything as a result of what they're hearing," he observed.

The commission also struggled to understand what would trigger a level 4, which would unlock immediate action from the ministry to respond to the situation.

"So if a place had COVID and the residents were at risk of getting COVID and 30 percent of the residents were going to die, would that be in level 3 or level 3+? Do you know?" co-lead commission counsel John Callaghan asked Haves. "Well, we wouldn't — we wouldn't know if they were going to die or not," she responded.

There were also issues with inspector availability. Haves explained the pre-pandemic state of affairs, placing the emphasis on the idea that there were too many approved inspector positions rather than on insufficient funding.

"So in December of 2019, we had too many FTEs for the amount of funding that we had. So we were told in December of 2019 we can not hire any new inspectors. And then — but in October of 2020, we received approval for additional, including the vacancies that we had," she explained.

In recent days the commission has heard that the government awarded a sole-sourced consulting contract worth $1.6 million to McKinsey based on a cold call. And it also heard testimony that Public Health Ontario was wary of taking the lead on Infection Prevention and Control (IPAC), despite their expertise, because it was concerned of becoming amalgamated in the government's Ontario Health governance overhaul.

The Ministry of Long-Term Care did not immediately respond to a request for comment, but we will update the story when they get back.