On May 12, 2020, the Ontario government passed an emergency Order under the Emergency Management and Civil Protection Act temporarily amending section 156 of the Long-Term Care Homes Act, 2007 ("LTCHA") to expand the circumstances under which the Director may issue a Mandatory Management Order under the Act ("Emergency Order").
Pursuant to the Emergency Order, the Director may issue a Mandatory Management Order with respect to a long-term care home where at least one resident or staff member in the long-term care home has tested positive for the coronavirus (COVID-19) in a laboratory test. The Emergency Order allows a Mandatory Management Order to be made regardless of the home's compliance with the LTCHA and despite any requirement or grounds for Mandatory Management Orders set out in the LTCHA or Ontario Regulation 79/10 (General) ("Regulation") made under that Act.
Mandatory Management Orders issued pursuant to the Emergency Order may set out the name of the person who is to manage the long-term care home. The manager could be any person, including a corporation or a hospital. In the normal course, the long-term care home would select the manager, which would be subject to the Director's approval.
Mandatory Management Orders issued on the basis of COVID-19 may only be in effect for as long as the duration of the Emergency Order.
Organizations, and particularly hospitals, may be approached by the Director to assist with managing a long-term care home in a COVID-19 outbreak. In fact, two Mandatory Management Orders have already been made under the Emergency Order appointing local hospitals to temporarily manage two long-term care homes for 90 days. There is no indication in the Emergency Order that a person or organization can be ordered to manage a long-term care home without their agreement, and any organization assuming this role will need to be aware of significant statutory requirements and legal risk considerations.
In addition to obligations set out in the LTCHA, the Mandatory Management Order may define other requirements for the manager. Whether or not required in the Mandatory Management Order, it is advisable to have a contract in place for clarity on roles and responsibilities, allocation of risk and confidentiality and privacy obligations.
Ministry of Health Indemnity?
On May 22, 2020, the Ministry of Health issued a memorandum to Board Chairs and Chief Executive Officers of Ontario Public Hospitals, advising that "to further support Ontario public hospitals in connection with their work in long-term care homes" the Minister of Health may indemnify public hospitals that, in response to COVID-19 outbreaks in long-term care homes, are "assuming a management role pursuant to an order issued by the Director within the meaning of the Long-Term Care Homes Act, 2007 (LTCHA) to a long-term care home licensee under section 156 [mandatory management order] or 157 [revocation of license] of that Act or pursuant to a management contract under section 110 [management contracts] of the LTCHA".
It is quite rare for the Ministry to offer an indemnification and this reflects the extraordinary circumstances posed by COVID-19. However, we caution that the memorandum notes that the Minister may indemnify but is not obligated to do so.
Any hospital that takes on or supports management functions for a long-term care home must consider the potential statutory liability under the LTCHA and contractual liability in any agreements entered into with the long-term care home. It is recommended that organizations consult their legal advisors for support to protect the organization's interests and minimize risk.
Miller Thomson's Health Industry Group is available to support organizations with the regulatory framework and supporting contractual agreements.
Originally Published 29 May 2020
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