Even before the Covid-19 pandemic, the ability of long term care (“LTC”) facilities, residents in LTC and their substitute decision makers (“SDM”), to restrict visitors has been a recurring topic of discussion. There are two main perspectives on this issue. One is the right of residents of an LTC, or their legal representative, to restrict who may visit them and the other is the right of LTC homes to restrict visitors.
The first element is the easier of the two, particularly where the resident still has capacity. If resident A is estranged from a child for example, presumably A can ask the LTC to prohibit A’s child from gaining access to the facility for the purposes of visiting. However, anyone who has ever visited an LTC pre-Covid knows that gaining access is fairly simple, and not as closely monitored as some might like. Therefore, A’s child could slip in and attempt a visit without necessarily being barred.
As a result, physical access to an LTC and its residents is a logistical issue with which facilities need to wrestle. It is also a legal one given the provisions of the Residents’ Bill of Rights, found at section 3 of the Long Term Care Homes Act (“LTCHA”), extracts of which are reproduced at the end for ease of reference. These rights include a variety of items such as the right to pursue social, cultural, religious, spiritual and other interests, and to develop his or her potential, which go beyond access to what is traditionally considered health care. This suggests a broad perspective on what constitutes human wellbeing.