Long-term care homes legislation : Lessons from Ontario

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Why gender matters

Close your eyes and imagine that you are 96 years old. Your broken hip confines you to a wheelchair from which, perversely, your rapid-onset mild-to-medium dementia liberates you. You get up from the dining table, and fall. You stand to look at or for something, and fall. You clamber over the strange bars on your bed to go to the bathroom, and fall. They say you are in a nursing home. Now open your eyes, look around and answer the question: What is the most visible feature of this nursing home?

WOMEN. Put simply, more than 75% of long-term care home beds are occupied by women. However, not only are the residents mostly women, so too are the caregivers. Women comprise 90% of the hands-on caregivers (professional support workers, physical and occupational therapists, registered practical nurses and registered nurses) and support workers (dietary, laundry, cleaning and clerical staff) who work in long-term care homes. Moreover, at least a majority of residents’ regular visitors are female family members: daughters, sisters, wives and partners.

If you did not answer “women” it may be due to the gender-neutral language police who have successfully neutered our discourse about long-term care (LTC) homes, a.k.a. nursing homes, homes for the aged, etc. Consider the new Long-term Care Homes Act that the Ontario Legislature enacted in May 2007. Known in its pre-enactment stage as Bill 140, it contains no reference to women.

Instead, the Act is phrased in terms of residents and licensees. The former are promised “resident-centred care” to be delivered through a Residents’ Bill of Rights, written plans of care, specified services (including one Registered Nurse but not dental work), and a safe and secure environment. The latter (the owners of LTC homes) are provided with detailed rules about establishing, maintaining and closing LTC homes.

Does gender matter? In the case of residents, do women’s care needs differ from those of their male counterparts? In the case of licensees, does it matter that few are female? The short answer is that we don’t know. Provincial governments across Canada legislate LTC  homes policies without examining their implications for women, whether residents or licensees, workers or visitors.

Yet numbers alone tell us that LTC home policies have significantly more impact on women than men. According to 2006 Census data, currently 4.3 million Canadians are seniors; one million are over 80, with two-thirds of them being women; and 4,635 people are over 100, five-sixths of whom are female.

Legislating minimum standards of care

In Ontario alone there are over 75,000 nursing home beds, and more than 75% of these beds (more than 56,250 beds) are occupied by women, many of whom have a moderately severe dementing illness.

Dementia is a major determinant of who occupies LTC home beds. It is increasingly found among our aging population and its impact is quantitatively more debilitating for women. In 1991, a study of seniors aged 85 or more who suffered from dementia revealed that 70% were women.

The nature of dementia dictates the care needs of many LTC home residents. It can lead to falls and fractures which in turn call for complex care. Even mobile dementia residents may need diapers, but the government’s $1.20 allowance limits them to three or at most four a day, all of which must be filled to the green 80% line before they can be changed.

For residents who need assistance toileting, the most important feature of LTC home legislation is whether the government is prepared to make a commitment to a minimum standard of care for residents. While Ontario’s law was moving through public hearings, a major controversy surfaced between proponents of a legislated standard and the government’s determination to omit any standards from the Bill.

Two provinces have legislated a minimum standard of care per resident per day: Alberta (1.9 hours) and Saskatchewan (2 hours). British Columbia’s legislation does not specify minimum hours but does list the services that must be provided and that a sufficient number of employees must be on duty to provide these services. The remaining provinces have no legislated standard of care.

Ontario resisted on the ground that legislation could freeze the standard below what might become necessary. Since the provinces with legislated standards already provide above the minimum (Alberta provides 3.5 hours and Saskatchewan 3 hours), and since it is not a monumental task to amend ordinary legislation, this contention seems spurious.

Under widespread pressure to adopt a legislated standard of 3.5 to 4.0 hours per resident per day, Ontario finally agreed to refer in the Act to regulations to be passed setting out the minimum standard of care. No regulations exist as of yet. Instead, Ontario LTC homes currently provide about 2.5 to 2.8 hours, which translates into only two personal support workers on duty overnight for upwards of 38 residents. Put differently, elderly immobile women in diapers who have to urinate more than twice a night risk soaking diapers, broken skin and bedsores.

Acknowledging the impact of this legislation on women is not to deny the needs of male residents. Rather it is to ensure the legislation remains focused on and accountable to its actual beneficiaries.

Legislation without accountability

Regrettably LTC legislation across the country makes little to no effort to be accountable to residents. In Ontario, despite its inclusion of a Bill of Rights for Residents, its listing of the services residents should receive, its description of the process of admission to long-term care, and its delineation of the organizational structures that should be found in LTC homes, its compliance and enforcement mechanisms are weak.

For instance, inspections are annual and not without exceptions. The Residents’ Bill of Rights is enforceable only if a resident opts to sue the operator of the LTC home for breach of contract. And the Act establishes an administrator known modestly as the Office of the Long-term Care Homes Resident and Family Advisor to provide advice, rather than an Ombudsperson with the power to act as an advocate for residents and their families in the event of unresolved conflicts with LTC home operators and provincial bureaucrats.

Enabling for-profit LTC facilities

The real objective of Ontario’s law is to serve as licensing legislation. It is licensing legislation masquerading as resident care.

Don’t get me wrong, we need to license long-term care homes. What we do not need is a licensing regime that encourages the already too few non-profit homes to convert to for-profit homes. Put simply, for-profit LTC homes make their profits at the expense of their residents and workers.

To explain: regulations provide that both non-profits and for-profits receive identical funding from the government and from resident fees. For-profits must make their profits from these sources, while non-profits can use them to provide better resident care and worker compensation.

In Kingston, for example, the evidence that non-profits offer better care and care-giving derives from Kingston General Hospital’s crisis placement policy. This policy forces patients needing long-term care to select three homes, one of which may be on the Hospital’s A-list which contains only non-profits. In contrast the Hospital’s B- and C-lists, from which at least two homes must be chosen, consist of profit-making LTC  homes.

By making it easier to convert non-profit homes into profit-making homes, the Long-term Care Homes Act has a significant impact on caregivers, the vast majority of whom are women. These front-line workers are underpaid and poorly treated in terms of their employment conditions.

Safeguarding workers’ rights

To compound the problems these workers face, the Health Professions Regulatory Advisory Council recently issued a report (Regulation of Health Professions in Ontario: New Directions) recommending that Personal Support Workers should not be regulated as a profession under the Regulated Health Professions Act, and that a Personal Support Worker Registry should not be implemented. Rather, education and training of PSWs should be improved, as should their staffing and supervision. These recommendations do nothing to improve the status and credibility of this overwhelmingly female dominated occupation that is the backbone of all LTC homes.

Ontario is not alone in devaluing the contributions of these women. British Columbia tried to diminish the collective bargaining rights of a number of unionized health care workers in that province, again predominantly women. It took a decision of the Supreme Court of Canada to establish that the legislation was unconstitutional, violating the Charter rights of the workers.

If women who work in LTC homes and the residents they service are not to be harmed by the kind of licensing legislation that Ontario has adopted, the government must resist the conversion of existing LTC homes and beds from non-profit to for-profit. Ideally, calls for adding more long-term care beds and building more LTC homes would be funded in such a way as to encourage more non-profit bids. Certainly there should be some form of incentive (or punishment?) to preclude municipalities where homes and beds are sorely needed from refusing to enter the bidding process, as just happened in Kingston.

By facilitating conversion of non-profit homes and beds to profit-making corporations, by failing to adequately fund care-giving, and by subscribing to discretionary staffing standards, the Ontario Long-term Care Homes Act is licensing regulation with a vengeance. It promises more harm than benefit to the women (and men) whose interests should be foremost in the revision of long-term care policy.

Bev Baines is a Professor in the Faculty of Law and the Head of the Department of Women’s Studies at Queen’s University, Kingston (currently on leave).

For more on women and long-term care facilities, visit the website of Women and Health Care Reform for forthcoming studies on this important topic: www.womenandhealthcarereform.ca