Ontario strikes commission to investigate COVID-19 in long-term care on short time frame

Ontario strikes commission to investigate COVID-19 in long-term care on short time frame

The Ontario government has struck a commission to investigate the spread of COVID-19 in long-term care homes that is similar in structure to the SARS Commission but gives much less time to investigate a tragedy that has resulted in far greater loss of life.

Legal experts and advocacy groups raised concerns about the commission's terms, with some warning that the government itself will have the final say on what information will ultimately be shared with the public.

Premier Doug Ford and Long-Term Care Minister Merrilee Fullerton announced Wednesday the creation of a three-member commission chaired by Associate Chief Justice Frank Marrocco of the Ontario Superior Court, along with Angela Coke, a former deputy minister of Government and Consumer Services, and Dr. Jack Kitts, former president and chief executive of The Ottawa Hospital.

The panel has only nine months to complete its final report on how COVID-19 killed more than 1,800 residents and eight workers at long-term care homes, so far. The SARS Commission took three-and-a-half years to investigate the then-novel coronavirus that caused the deaths of 44 people in Ontario.

In a written statement, the commissioners said they are honoured to start their important task.

"We have a clear mandate to investigate how and why COVID-19 spread in long-term care homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread," they said, speaking to their terms of reference. "We have the power to consider any further areas where the government should take action to help prevent the future spread of disease in long-term care homes."

"We will be doing this work very quickly as the entire health-care system prepares for a possible second wave of COVID-19," they said, and noted that the health-care system will also be responding to the findings and the recommendations of the Public Inquiry into the Safety and Security of the Residents in the Long-Term Care Homes System, which was triggered by the serial killings by nurse Elizabeth Wettlaufer.

One outcome of that inquiry is a report on staffing in long-term care homes that is due to be released in the coming days and will likely have a direct bearing on the commissions' work, as understaffing is already known to be a key contributor to the loss of life and inadequate care provided during the pandemic.

The commission's mandate is broad enough to include the current government's actions but also the systemic factors left in place by its predecessors.

"It was a crisis decades in the making," Ford said, repeating something he has said often — that his government didn't create the problem, but is promising to fix it.

The commission is not a traditional public inquiry. Like the SARS Commission led by Justice Archie Campbell, it was struck under the Public Health and Promotion Act and empowered under the Public Inquiries Act to summon people to give evidence or produce evidence, such as documents.

While the commission is empowered to hold public hearings, its mandate and time frame preclude it from holding the expansive hearings typical of public inquiries where some parties are given standing as full participants in the process and are entitled to cross-examine witnesses, said Jane Meadus, who was counsel to the Ontario Council of Residents' Associations in the recent Long-Term Care Homes Public Inquiry, which dealt with the Elizabeth Wettlaufer murders.

Meadus also noted there is no funding to provide support for groups, such as the families of victims, to participate or retain legal counsel.

She also flagged language in the commission's terms of reference on confidentiality of data and information as unusual and a concern.

That was shared by another lawyer with extensive experience in public inquiries, who spoke on background to QP Briefing, because of his legal work. He said the language appears to treat all information and data the commissioners acquire as confidential and can't be shared without the Ministry of Long-Term Care's approval, giving the government the final say on what is included in the report and released to the public.

That would be "very strange" and "antithetical to the notion of a public inquiry," he said, adding that a more direct way to protect confidential information would be to instruct that personal health information be redacted.

Meanwhile, the opposition parties and some stakeholder groups criticized the Ford government for limiting the scope of the investigation.

NDP justice critic Gurratan Singh criticized that the scope is "too narrow" and said it should have specifically included the role of profit-making corporations. He also criticized the government for allowing the commission to hold closed-door meetings rather than public hearings, for not explicitly giving families standing, and for not giving the commissioners the power to make binding recommendations. He also criticized the confidentiality language.

Meanwhile, Liberal critic John Fraser criticized the government for not taking action to fix long-term care immediately. "Today, Doug Ford doubled-down on a toothless government-led Commission rather than the full Independent Public Inquiry that Ontario families expect and deserve," he said.

And Green leader Mike Schreiner said he was disappointed that the terms of reference prevent the commission from reaching any conclusions about civil or criminal liability, which is common in inquiries, and that they don't task the commission with comparing the conditions between for-profit and non-profit homes.

Others, including the AdvantAge Ontario and the Ontario Nurses' Association, called on the province to take action immediately on some issues, particularly on staffing shortages that deprive residents of adequate care.

Jessica Smith Cross

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