Senior care homes

Older In Years, Worse Off By Far?

‘Older persons remain chronically invisible despite pandemic spotlight’ concluded the UN Independent Expert on the enjoyment of all human rights by older persons in a recent statement.

In marking the International Day of Older Persons on 1 October 2020, the UN Independent Expert Claudia Mahler succinctly captured a lamentable reality far too familiar in far too many countries during the current pandemic, not least Canada:

“Tragically, the COVID-19 pandemic is shining a spotlight on older persons. It has a disproportionate impact on older persons and has magnified existing violations of their rights. Existing inequalities that older persons face in terms of access to health, employment and livelihood are exacerbated. This involuntary focus on older persons should not conceal the fact that they are chronically invisible.”

The full horror of the devastating impact of COVID-19 on Canada’s elderly was all too evident during the first wave of the pandemic, particularly on those seniors living in long term care homes. With a second wave of the pandemic seemingly fast descending upon parts of Canada, collective anxiety for the wellbeing of institutionalized seniors is only amplified.

Graffiti of Old Woman – Cristian Ungureanu (2019).

The increasingly numerous news stories highlighted on this website about outbreaks of COVID-19 in such settings fuel concerns that a tragic replay may be about to unfold in the coming winter months, reminiscent of scenes from earlier in the year. An awful rerun no less, perhaps epitomized at its worst by the thousands of deaths and the images of the Canadian military being drafted into barely-coping care homes in Ontario and Quebec.

Understandably, several class-action lawsuits have since been initiated owing to the apparent failure of such facilities to provide even a modicum of care for residents.


Ineffective oversight

Yet where is the effective independent oversight of such institutionalized settings in Canada?

An article published on this website in May 2020 titled Canada’s Senior Care Home Scandal forcefully advanced the argument for greater independent oversight of such institutions, including through the ratification and implementation of the OPCAT in the country.

Unsurprisingly, the UN Independent Expert on the enjoyment of all human rights by older persons has similarly urged adherence to the OPCAT in a report presented to the 75th session of the UN General Assembly just last week.

In an Annual Report titled Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons UN Expert Claudia Mahler explores the many challenges faced by seniors during the COVID-19 pandemic, recounting its bluntest impact in the following terms:

“The pandemic has had very broad effects on older persons: they have been denied health services; they have been physically and socially isolated; and they have been the victims of ageist attitudes. Despite being such a diverse group, older persons have been labelled as vulnerable and branded as burdens to societies. The pandemic has made very evident the urgent need to combat stigma and age discrimination.” (§26)

Within care home settings isolation has sometimes been the most acute, as the UN Independent Expert has observed:

“At the height of the pandemic, when official monitoring in some care homes was interrupted to focus on controlling the spread of the virus, the prohibition of regular visits from friends and family removed a crucial informal monitoring mechanism and provided an entry point for violence, abuse and neglect.” (§50)


People Walk – Titoy (2009).

Justice for seniors

In the said report, the UN Independent Expert passionately argues that the pandemic brings right to the fore the specific justice needs of older persons, such as addressing the rise in violence, maltreatment and abuse both in institutionalized as well as private care contexts, including the home.

One such justice-related measure advocated by the UN Independent Expert is for the establishment of independent bodies or entities for older persons, as follows:

“It is crucial to establish an independent and impartial entity, procedure or
body, possibly within an existing independent body, with the mandate to examine complaints pertaining to older persons. It is also important to apply the jurisdiction of the independent body, such as an ombudsperson, under the Optional Protocol to the Convention against Torture … and to consider its specific application to guarantee safe care for older persons, including in residences for dementia patients. Rather than creating a completely new institutional body, the establishment of an independent national commissioner on the enjoyment of all human rights by older persons within an existing human rights commission or human rights institution to serve as an independent entity for older persons should be considered.”
(§91)

While such bespoke entities for the elderly do exist in certain provinces in Canada, they certainly do not function akin to National Preventive Mechanisms under the OPCAT, clearly mandated to exercise dynamic and energetic independent oversight of an array of closed institutions, including care home facilities.

At the same time, widespread concerns about the efficacy of internal government oversight of care homes has become more pronounced as the pandemic has worsened. The Ontario Ombudsman launched an inquiry into government oversight into long term care homes during the pandemic in June 2020, while Quebec’s Protecteur du citoyen launched its analogue investigation into the crisis in September 2020.

See you at the finish line – Stefan Barna (2016).

In the devastating wake of the pandemic the Royal Society of Canada convened a Working Group on Long Term Care, which published a critical report in July 2020 titled Restoring Trust: COVID-19 and The Future of Long-Term Care. A key finding of the report relates to the need for transparent and arms-length data collection to be used to evaluate the accreditation and regulation of care homes. Furthermore, it was argued that governments must take an evidence-based and balanced approach to mandatory accreditation as well as to the regulation and inspection of such settings.

The Royal Society recommendations may be a few steps short of OPCAT perhaps, but they are, nonetheless, a move in the right direction to ensuring greater scrutiny.


Making a difference?

Yet would the ratification and implementation of the OPCAT have made any significant difference to the tragic outcomes to have beset care homes in Canada? The answer to the question is, admittedly, not back and white.

In July 2020 the Council of Europe’s highly respected detention monitoring body, the European Committee for the Prevention of Torture, issued a follow-up statement concerning the measures taken with regard to persons deprived of their liberty and the pandemic. The statement underscored the potentially highly positive impact of independent oversight in the following terms:

“From the CPT’s perspective, the pandemic also hit the hardest in those places of deprivation of liberty where previous recommendations made by the Committee had not been implemented. This relates to the entire spectrum of the CPT’s mandate: from prisons to social care homes, from psychiatric hospitals to immigration detention centres.”

The statement concluded:

“Finally, the CPT wishes to recall the crucial importance for the prevention of ill-treatment of monitoring of detention places by independent national and international human rights bodies. The findings of such bodies can be of great assistance to member States in assessing the practical impact of their policies upon persons deprived of their liberty. Consequently, the Committee welcomes the fact that, in several countries, National Preventive Mechanisms (NPM) and other national monitoring bodies have resumed visits to places of deprivation of liberty, whilst taking precautions to observe the ‘do no harm’ principle, and it hopes that this positive trend will be followed as soon as possible by other relevant bodies across Europe.”

Many of the shortcomings highlighted by the current pandemic were previously well known. Staggeringly, they had just never been acted upon in any systematic way in practice; nor did there exist in many jurisdictions a rugged independent framework of oversight to push for much-needed change.

While not a panacea for all care homes ills, the OPCAT instrument, if well implemented at the domestic level, could offer Canada a framework anchored in international human rights law to ensure eminently more robust oversight of such contexts, including through liaising with other regulatory bodies.

Quite clearly, the status quo patchwork of internal, often haphazardly performing regulatory bodies with responsibility for care settings is no longer an acceptable or operationally viable option in Canada. The OPCAT might just well offer a way forward.


Read the report of the Independent Expert on the enjoyment of all
human rights by older persons, Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons (21 July 2020).

Read the accompanying press release, Older persons remain chronically invisible despite pandemic spotlight, says UN expert.

Learn more about the mandate and mandate-holder of the Independent Expert on the enjoyment of all human rights by older persons.

Read the July 2020 statement of the European Committee for the Prevention of Torture in English and French.

Posted by mp in Canada, COVID-19, OPCAT, Oversight bodies, Senior care homes, UN Special Rapporteur

Ontario Prisons: Something To Complain About?

Plenty it would seem, if you believe the province’s principal complaints-handling body, Ontario Ombudsman.

According to the Ontario Ombudsman’s 2019-2020 Annual Report, issued on 30 June 2020, a very sizeable 6000 complaints were lodged by prisoners about the province’s correctional facilities. This figure represented an increase on the year previous, when 5711 complaints were filed about Ontario corrections.

Of this most recent figure, some 82 complaints were lodged by groups of prisoners in the same unit or facility, usually as a means to vent a common grievance such as sub-standard living conditions.

As the illustration below succinctly depicts, significantly more complaints were made in relation to correctional facilities in the province than any other criminal justice-related matter.

A breakdown of the top five reasons for lodging a grievance is illustrated below. Prisoner complaints about inadequate healthcare provision far exceeded all other grounds for grumble, although there was a very significant groundswell of displeasure in relation to lock-downs (often due to staff shortages), representing an increase of nearly 200 complaints as compared with 2018-2019. The report discusses these and other prisoner-held concerns in greater depth in its Law and Order section.

On page 79 of the report the top 10 institutions as sources for complaints are additionally listed. Three prisons generated more than a whopping 700 plus grievances each.

The institution’s team also continued to visit prison facilities throughout the year. In doing so, staff encountered some grim realities:

At some facilities, including the Thunder Bay and Kenora jails, our team observed disturbing, overcrowded and unsanitary conditions. Some facilities had three or even four inmates bunked in cells designed for two. We also saw inmates housed in areas not designated for living purposes, where they had no direct access to toilets and were subjected to frequent, prolonged lockdowns, limiting their access to programs, fresh air, and even running water. Correctional staff told the Ombudsman and our team that these conditions harm the morale of inmates and staff alike.

Equally worryingly, the Ontario Ombudsman received 118 complaints alleging physical abuse by prison staff, of which two such examples are highlighted in the report:

“An inmate told us he was punched in the head and face several times by correctional officers, leaving him in hospital with a broken nose and concussion. We confirmed with the facility that after a local investigation, the matter was referred to the CSOI and the correctional staff involved were suspended.”

“We reviewed a facility’s handling of a case where an inmate was hospitalized after being pepper-sprayed by a correctional officer. The local investigation report confirmed that excessive force had been used, but we identified several issues with the investigation process, including lengthy delays and revisions made to the original report, resulting in conflicting information. We raised these issues with senior officials at the facility, as well as the Ministry, which is updating its policy for local investigation reports.”

During the year under review, the office handled a massive 26,423 complaints and inquiries about broader public sector services. As discussed in the report under 12 different topic headings, the Ontario Ombudsman handles complaints as diverse as law and order, social services, French language services, children and youth, education, health, transport and employment – to cite just a few.

In the accompanying press release to the Annual Report, Ontario Ombudsman Paul Dubé reflected on the stunning and ongoing challenges faced by the province’s public sector arising from the current coronavirus pandemic, stating:

“The profound shock to our public infrastructure and systems will provide countless lessons, as well as opportunities to strengthen them in future … We stand ready, as always, to help.”

Very positively, Ontario Ombudsman Paul Dubé proactively responded to the current pandemic by releasing on 26 March 2020 a statement regarding the impact of the COVID-19 outbreak on the province’s correctional facilities. The statement outlined the institution’s methodological approach to ensuring its human rights monitoring function during the public health emergency.

Moreover, in response to the numerous deaths in supposed care facilities for seniors, on 1 June 2020 the institution launched an investigation into the oversight of long-term care homes by the province’s Ministry of Long-Term Care and Ministry of Health during the ongoing COVID-19 pandemic.

The argument has previously been advanced in these pages that the ratification of the OPCAT could be one active measure the Canadian government might take to address the slipshod oversight – internal or otherwise – of such facilities for Canada’s elderly.

While not an NPM-type preventive entity, the Ontario Ombudsman’s Annual Report and its focus on prison-related matters reveal a hard-working complaints-handling institution sensitive to the human rights of the province’s incarcerated population.

Readers may also be interested to read the thematic and annual reports of other provincial ombuds-type bodies including institutions in Alberta, Manitoba, New Brunswick and Quebec.

In a nutshell, there is much reading to be getting on with this fine Canada Day.


Read the Ontario Ombudsman’s Annual Report 2019-2020 in English and French.

Read the accompanying press release in English and French.

See the statement by the Ontario Ombudsman on COVID-19 and Ontario’s Correctional Facilities in English and French.

Learn more about the Ontario Ombudsman’s investigation into the oversight of long-term care homes during the ongoing COVID-19 pandemic in English and French.

Posted by mp in OPCAT, Prisons, Senior care homes

The Canadian Seniors Care Home Scandal – A Catalyst for Change?

Four years’ ago this week, the then Minister of Foreign Affairs, Stéphane Dion, declared to the world that the Optional Protocol would no longer be optional for Canada in the future, a full decade after Canada had originally hinted it would ratify the instrument in 2006.

Put it down to forgetfulness, institutional amnesia or even just debilitating procrastination, Canada has yet to make good on its stated commitment to finally put pen to paper at UN headquarters in New York and ratifying the instrument.

In so not doing, Canada may well have succeeded in setting a new world record for the longest OPCAT ratification process in the instrument’s history – at least for an advanced democracy – trailed in close second by the Republic of Ireland (which has, if nothing else, signed the instrument).

No other contenders for the record come to mind. On the other hand, quite a few other countries who lag significantly behind Canada in overall human rights terms have done so – long ago even. Argentina, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Mexico, Serbia and Tunisia spring immediately to mind.

Guinness World Records 2020 – Debbie Harris (2019).

Over the years there has been no lack of international encouragement for Canada to make good on its commitment to ratify the OPCAT, not least by the UN Human Rights Council and UN Committee against Torture in 2018.

After undertaking fact-finding missions to these Canadian shores, the UN Special Rapporteur on violence against women and UN Special Rapporteur on the rights of persons with disabilities both urged Ottawa to ratify the instrument in their 2019 reports.

So what goes on in Ottawa? Frankly, probably very little it would seem. The Canada OPCAT Project’s repeated attempts to elicit even a single atom of information about the not-on-going OPCAT ratification and consultation process through Access to Information & Privacy (ATIP) requests have proven largely ineffective.

A December 2019 ATIP request seeking clarity about whether Global Affairs Canada (supposedly the lead OPCAT ratification agency in Canada) had liaised with civil society groups on the ratification of the instrument since Canada’s examination by the UN Committee against Torture in Geneva in November 2018 has, to date, gone entirely unheeded.

The current Covid-19 emergency will undoubtedly squelch any remaining hope, no matter how dim, of ever receiving a reply to this eminently reasonable request.


Yet just look 360 degrees about you. If there were ever a time when effective, robust oversight of Canada’s closed institutions were needed, then that moment is right now.

The current Covid-19-related crisis in Canada’s long-term care homes for seniors is a sadly illustrative case in point. So far, fingers tightly crossed, the coronavirus health crisis has not severely afflicted the Canadian prison system in terms of fatalities. In stark contrast, however, private and state-run care homes for seniors have been utterly ravaged by the virus.

Unfathomably, seniors have been dying in scores in the very facilities designed to care for them. The sheer daily number of news entries listed in the COVID-19 Deprivation of Liberty Corner, reporting the appalling deaths and infection rates of society’s seniors, is a reflection of the current, depressingly critical situation.

Watch For Senior Citizens – Ethan Prater (2008).

Yet where are the rugged, independent mechanisms pointing the finger at and holding these facilities to account?

Is it entirely accidental that these most lightly regulated of institutions have fared so poorly in dealing with the existing pandemic? If the current death rates had plagued Canada’s prison estate, there would have been a unshakable national scandal by now, and rightly so.

Yet where is the seething anger regarding how Canada’s seniors are being treated?

Robust, independent oversight is not a panacea to society’s closed institutional ills, even more so at moments of public emergency like the present. Yet it is a pretty decent start.

It can ensure that the human rights and dignity of persons found therein, whether they be senior citizens, migrants or prisoners, are observed during both the best and worst of times.

If there is nothing like a raging public row to clear the air, then that moment is arguably the present. Increasingly thunderous calls for change in how senior care is operated in Canada should result in a complete overhaul of the private and public long-term care system for the elderly, resulting in sweeping change which incorporates robust, independent oversight thereof at all jurisdictional levels.

The OPCAT human rights instrument could be a key component of this much-needed change-process.

Sidewalk Reassurance – Travis Wise (2020).

From an OPCAT perspective, the question of whether senior care homes fall within the scope of OPCAT Article 4’s definition of deprivation of liberty has long been settled. Furthermore, the highly respected European Committee for the Prevention of Torture has been visiting care homes of different types for many years as part of its core detention monitoring mandate.

In August 2019 leading Australian academic Laura Grenfell made some excellent arguments why seniors’ homes fall squarely within the scope of OPCAT Article 4 in a journal article titled Aged care, detention and OPCAT, featured in the Australian Journal of Human Rights. The latter journal has devoted invaluable space in recent months to the important issue of OPCAT implementation in Australia, several articles from which have been highlighted in the OPCAT Academics section of this website.

In the said article Professor Grenfell underpinned the crucial importance of independent oversight of senior care facilities, as follows:

Current federal and state schemes for the monitoring and oversight of closed aged care facilities are inadequate. This is largely due to the hodgepodge of standards and existing inspection bodies’ lack of expertise. It is critical for civil society to encourage government to adhere to and resource best-practice OPCAT monitoring for aged care facilities where people are detained in closed units. Monitoring by NPM teams using rigorous and nationally consistent human-rights-based standards will allow the risks facing a vulnerable group of people – who, in SA ICAC’s words, ‘lack any voice themselves’ and are ‘entirely dependent upon others for their care and their safety’ (South Australian Independent Commissioner Against Corruption 2018, 190) – to be assessed. People who are deprived of their liberty in closed aged care units are in a vulnerable position and are at a disproportionately high risk of torture or cruel, inhuman or degrading treatment. Closed units in aged care facilities should not be allowed to fall under the OPCAT radar.

What has come to pass in Canada’s long-term care facilities for seniors can never be allowed to happen again. The need for robust regulation and effective, hard-wearing arms-length oversight of such institutions should be the catalyst for a long overdue, re-energized national discussion on the ratification and implementation of the OPCAT in Canada.

As opposed to further OPCAT procrastination, Canada should strive to be a world record-breaker in how it treats its senior members of society as a barometer of its commitment to everyone’s human rights – the young and the old. After all, we are all headed in the same direction. The effective implementation of the OPCAT could make a decisive contribution to this overarching process.

Yet with the ratification of the OPCAT being entirely a figment of someone else’s imagination in Canadian government circles these days – or seemingly so – something fundamentally needs to change in Ottawa’s corridors of power.

Four further years of OPCAT procrastination, after the country’s then Minister of Foreign Affairs very publicly committed to OPCAT ratification, is nothing to be proud of. In view of the current seniors care homes scandal, sitting on one’s hands no longer remains an acceptable national policy option.


Read Laura Grenfell’s article, Aged care, detention and OPCAT in the Australian Journal of Human Rights.

Explore other academic articles in OPCAT Academics.

Learn more about the OPCAT ratification process in Canada.

Find other materials on Covid-19 and detention.

Posted by mp in Australia, Civil society, Consultation, OPCAT, Oversight bodies, Senior care homes