Hon. Associate Chief Justice Frank N. Marrocco
Chair of the Independent Long-Term Care COVID-19 Commission
Dear Associate Chief Justice Marrocco:
RE: Taking a human rights-based approach
Congratulations on your appointment as Chair of the recently-established Independent Long-Term Care COVID-19 Commission (LTC Commission). The LTC Commission will play an important role in ensuring that Ontario’s long-term care system is better able to meet the needs of residents and staff and to prevent the future spread of disease in long-term care homes.
I am writing today to stress the important role that human rights principles should play in any reviews of Ontario government and long-term care service provider responses to the COVID-19 pandemic.
On April 2, 2020, the OHRC released a policy statement and identified actions consistent with a human rights-based approach to managing the COVID-19 pandemic. The OHRC highlighted the need for government to:
- Provide all healthcare services related to COVID-19, including testing, triaging, treatment and possible vaccination, without stigma or discrimination
- Recognize that any restrictive measures that deprive people of their right to liberty must be carried out in accordance with the law and respect for fundamental human rights. This includes measures related to people in health and other care institutions
- Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as people and communities affected by COVID-19, when making decisions, taking actions and allocating resources.
In addition to the calls in its policy statement, the OHRC has also publicly stressed the need to take human-rights based approaches to the following issues as they relate to older persons:
- The duty to accommodate people with disabilities who need to access an essential support person while receiving health services during the pandemic
- The development of a clinical triage protocol for major surge in the COVID-19 pandemic.
Both the residents and the staff of long-term care facilities in Ontario are vulnerable populations at risk of discrimination on the basis of disability, age, race and other grounds protected in the Human Rights Code. Many residents and staff also risk experiencing unique, intersectional forms of discrimination because of their identification with more than one Code ground. For example, personal support workers (PSWs), many of whom are racialized and/or newcomer women, face compounded challenges. PSW’s often endure precarious and low-wage contract employment necessitating multiple jobs, while facing barriers in having their nursing or other credentials from abroad, recognized in Ontario. The OHRC encourages the LTC Commission to consider the various intersectional human rights characteristics, discriminatory conditions and systemic structural forces that may underlie the issues within the LTC Commission’s mandate.
It is crucial that the human rights of long-term care residents and staff are upheld and properly accommodated during and after the pandemic. Solutions for improving the long-term care system’s ability to protect residents and staff from future outbreaks must also ensure that Ontario and long-term care service providers are meeting their human rights obligations.
Please feel free to contact me if you have any further questions.
Ena Chadha, LL.B., LL.M.
cc: Hon. Merrilee Fullerton, Minister of Long-Term Care
Hon. Christine Elliot, Minister of Health
Hon. Doug Downey, Attorney General