Legality of Detention in Long-Term Care and Retirement Homes During the COVID-19 Pandemic
Disclaimer: Please be advised that government materials related to long-term care homes and retirement homes are frequently subject to amendments. As a result, the information in this article may have changed. For the most up-to-date government documentation, please see the most recent version of Directive #3 and policies for long-term care homes and retirement homes.
On March 22, 2020, long-term care homes (LTCHs) and retirement homes (RHs) in Ontario were essentially “locked down”, with residents being denied the ability to leave the premises. The stated purpose was to protect residents of these institutions from the ravages of the COVID-19 pandemic by restricting them from entering the community at large. This meant that approximately 72,000 LTCH residents and 60,000 RH tenants were detained in their homes, with countless group home residents and others living in congregate care settings facing the same restrictions.
It is clear that that COVID-19 has impacted residents of LTCHs more than any other sector of our community. As of November 18, 2020, out of the 3,152 deaths in Ontario that have been attributed to COVID-19, 2,174 were residents of LTCHs and 277 of RHs. As the second wave hits Ontario, it is clear that LTCH and RH residents continue to bear the brunt of the pandemic.
While it is understood that drastic measures must be taken to reduce the risk of COVID-19 to residents across Ontario, especially those living in congregate care settings, this does not give the government carte blanche authority to restrict the liberty of Ontario’s citizens. Any restrictions must be carefully drafted and made in accordance with the rule of law.
We have had many calls from residents and their family members who believe that the resident is being illegally detained. Many of these detentions by LTCH and RH operators have been petty and capricious and, in ACE’s opinion, unlawful. In fact, residents have had police called on them when they attempted to leave, despite there being no legal detention order for the police to enforce.
It is our position that detention of both LTCH and RH residents (as well as others in congregate settings) in its present configuration is not in accordance with the rule of law, and therefore illegal throughout the province of Ontario.