Ontario ministers mum on any action taken on report of deaths from neglect in long-term care

When the Canadian Armed Forces report detailing the horrors occurring inside long-term care homes was released, the premier promised a "full investigation" and the possibility of police involvement.

Nearly a year later, the final report of the independent commission into long-term care has exposed more disturbing details about what the military found and yet it's not clear any police force is investigating what reportedly amounts to dozes of deaths from neglect.

The Ford government gave mixed messages Wednesday about whether any steps toward holding those responsible accountable are being taken and the full investigation promised by the premier has not materialized.

The initial Canadian Armed Forces (CAF) report on the conditions the military discovered in the long-term care homes it assisted horrified much of the province when it was released in May of last year. It included a specific mention of a resident of Orchard Villa, in Pickering, who choked to death while being improperly fed.

After that, the Durham Regional Police confirmed it was reviewing allegations concerning that home. "We will be reaching out to the appropriate agencies and oversight bodies to determine the best and most appropriate way to proceed in order to address these concerns," said Chief Paul Martin at the time.

The premier also said the province was investigating.

"And as soon as we received this report on Monday, we launched a full investigation," Doug Ford said in late May 2020 at a press conference about the release of the military report. "And the results of our investigation will be turned over to the police."

But on Wednesday, Solicitor General Sylvia Jones said no such investigation occurred.

"Investigations would not happen at a provincial level or a ministry level, they would be the responsibility of either local police departments, or in some cases, they would refer it to another division or another police operation," she said.

The premier's office clarified that Ford was referring to inspections by the Ministry of Long-Term Care into incidents described in the report. A spokesperson for the ministry said all of the homes the military assisted were inspected after the report but the inspections did not trigger police investigations.

While the ministry said all of the reports concerning those inspections are available online, none of the inspection reports concerning Orchard Villa appear to include the death of the resident from choking described by the CAF in its initial report.

The long-term care commission's report, released Friday, included additional findings that bolster the case for a criminal investigation, according to one lawyer. Confirming what some family members had already told the media, the commission found that residents died not only of COVID-19 but neglect resulting in dehydration and malnutrition when staffing levels collapsed in at least two of the hardest-hit homes.

The report said that by the time the CAF arrived at the initial five long-term care homes, "they found deplorable conditions."

"Describing the experience in one home, one member reported: 'Large concern with the timing of arrival. It was noted by ACCT [augmented civilian care team] that 26 residents died due to dehydration prior to the arrival of the CAF team due to the lack of staff to care for them. They died when all they [needed] was 'water and a wipe down.'"

In regard to another home, the military noted: "The ACCT described that when they first arrived at the LTCF there was 'feces and vomit on floors and on the walls.' One ACCT member discovered that two of the residents had dried feces under their fingernails for a prolonged period of time. The ACCT Team reported that there had been resident deaths due to dehydration and malnourishment."

But it's not clear when the province first learned of those specific reports. So far, Long-Term Care Minister Merrilee Fullerton has refused to answer multiple questions from the media and opposition politicians about when she first learned that residents were dying of not only COVID-19, but neglect.

On Wednesday, a spokesperson for the CAF said the province would not have learned the details of the members' reports included in the commission report — in particular, the note from a CAF member that there had been 26 deaths from neglect at a single home — from the CAF.

Capt. Terrilyn McLaren said the military was obligated to report its direct observations about the conditions in long-term care homes to the province and did so via the report that was widely publicized last May. However, the details in the long-term care commission report pertained to what members learned about what had happened before they arrived and were not included.

"So it is possible that it was relayed to the province by other means, but it wouldn't have been us," she said, adding that the reports cited by the commission would have been circulated within Joint Task Force Central in Toronto.

According to Jane Meadus, a lawyer with the Advocacy Centre for the Elderly, deaths from neglect in long-term care should lead to criminal charges of failing to provide the necessaries of life.

"If we had a grandparent living with us, and they died of malnutrition and dehydration or failure to provide proper medical care, we would likely be charged under the Criminal Code for failing to provide the necessary," said Meadus, referring to the crime of failing to provide necessaries of life. "Criminal charges would be laid against us. And so I think there should be criminal charges pursued if people were dying from malnutrition and dehydration, and especially in cases where it was clear that there were multiple people dying, that is just unconscionable."

As for who would be charged — it's possible the home's management could be charged, or the corporation that owns the home itself, which is what she'd like to see. There's precedent for charging a company when neglect leads to death, Meadus said, and that would be most appropriate in this case.

It would be up to the police to determine who should face charges, she added, but she doesn't believe front-line long-term care workers are to blame.

But Meadus also acknowledged significant barriers to seeing criminal charges laid in these deaths, including that any police investigation, if launched, would likely be complex and challenging, requiring a dedicated police service. However, she also said that independent statements from the military could help such an investigation to move forward.

The Durham Regional Police confirmed a death investigation related to Orchard Villa long-term care home but have not made public any details. On Wednesday, a spokesperson said police are reviewing the details of the commission report "and this remains an ongoing investigation."

That investigation hasn't gotten off to a quick start according to Cathy Parkes, who lost her father in Orchard Villa and went to Durham's police service on behalf of herself and other family members to request an investigation.

She told QP Briefing the initial detective assigned to the investigation told her it wouldn't begin until the long-term care commission concluded its report, to avoid having any potentially conflicting statements given to police and the commissioners compromising either investigation.

Parkes said when the families shared those concerns with the commission, it did not share the police concerns.

While she hasn't had an update from the police since last October, she knows none of the families she represents have been contacted by the new detective assigned to the case.

She's among those who believe residents of Orchard Villa died of neglect.

"We knew that," she said. "For example, my father, who had COVID-19, which I didn't find out until three weeks after he had passed away — but I was told on the phone by the [personal support workers], that he wasn't taking fluids. They couldn't give him Tylenol to keep his fever down because he wasn't taking fluids. I said, 'Take him to the hospital,' and I was denied."

Parkes said the management of the home had told her he'd eaten 75 per cent of his lunch one day but she'd been watching at his window over lunch that day while he'd been lying, unresponsive, in bed. He'd also lost a startling amount of weight by the time he died.

"I think if he had been sent to the hospital, he could possibly still be alive," she said. "I mean, I don't know. COVID might have taken him, might not, I don't know, but he would have had a chance."

QP Briefing reached out to the three municipal services where the initial five homes the military aided are located and the Ontario Provincial Police (OPP) to ask if they are investigating any deaths in long-term care during the pandemic.

The OPP reported no investigations into long-term care. Peel Regional Police, whose jurisdiction includes the least severely affected of the five homes initially aided by the military, has not yet responded to QP Briefing's request.

The Toronto Police Service, whose jurisdiction includes three of the five homes, also said it has no investigations into long-term care deaths but noted that the province's chief coroner may be investigating and, if "during the coroner’s investigation, a death is suspected of being suspicious or criminal in nature, the relevant police service can review any findings and act on any evidence."

The Office of the Chief Coroner declined to tell QP Briefing if it is investigating the CAF report of 26 deaths in a single home, or if it is investigating any deaths in long-term care believed to be due to neglect, citing privacy reasons. A spokesperson said it would be "difficult to pull together" statistics on long-term care deaths during the pandemic that are being investigated.

"And without a comparison to a previous time frame, the data wouldn’t tell you much," said Stephanie Rae in an email. "Coroners are called to LTC homes for a variety of reasons – deaths that occur suddenly and unexpectedly (ex. falls), or other deaths that meet the criteria of Section 10 of the Coroners Act."

Negligence is among the criteria listed in that section of the Act.

In May 2020, the government confirmed the coroner was investigating one death stemming from the initial CAF report, which would have been the choking death at Orchard Villa.

Rae also spelled out the process for the coroner's office to become involved.

"COVID-19 deaths are considered a natural death, and as such, coroners are not generally called to investigate," she said. "In LTC homes, staff fill out an Institutional Patient Death Record (IPDR) that contains a series of questions that could trigger a coroner being called, which includes questions about care and if there were concerns by family or a physician. A coroner would review the IPDR and determine if there was a need for an investigation."

"If families have concerns with care received and if it contributed to a death, they can contact our office."

Meadus said she's long had concerns about the coroner's relative lack of involvement in deaths that occur in long-term care and considers it a "dereliction of duty" to treat them differently than any other citizen.

At a media scrum Wednesday, Fullerton was asked what her government is doing to ensure there is an investigation into the deaths of residents from neglect, including the reports from the CAF included in the commission report. She did not answer directly but said she was "grateful" that she'd been asked the question.

"Because for years I said, 'Why isn't someone doing something about this? Why isn't it someone acting? It's clear to me,'" she said. "And then when you get to government, you're trying to make things move, and make them fast, but the processes that we have, do take time. But I'm very pleased to say that we have shovels in the ground [to build new LTC homes] and our staffing plans are moving forward."