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The Ontario Superior Court of Justice has ordered four long-term care (LTC) homes to provide nurses with personal protective equipment (PPE) and to enhance isolation-related controls for residents and staff.

The decision comes after the union representing approximately 68,000 nurses and health care professionals filed a motion in court.

The Ontario Nurses’ Association (ONA) argued that its members have been working amid the coronavirus pandemic without proper protective equipment and that Henley Place in London, Ont., operated by Primacare Living Solutions, didn’t implement “minimum infection control and safety measures needed to contain the uncontrollable outbreaks that are now taking place.”

In documents filed in the Ontario Superior Court of Justice, the ONA stated that the first case of the novel coronavirus at Henley Place was confirmed March 29.

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By April 13, two residents with COVID-19, the disease caused by the virus, had died, and eight other residents had tested positive for the virus, including one who was in the hospital, according to court documents. The documents also noted that “many others” had symptoms consistent with the virus.

At that time, only those in the same unit were being tested, according to London’s medical officer of health. As of April 22, the Ontario government expanded testing, saying all staff and patients within a long-term care home with an outbreak would be tested for the virus.

The documents also alleged at least one instance in which a nurse was required to provide care to a resident who was known to have COVID-19 but was not provided with an N95 mask and instead given a surgical mask.

The ONA also alleged that the home had a “sufficient stock of N95 respirators on hand” but that they had been moved to the locked office of the home’s administrator. Only three people had access to a key for the office, the ONA claimed, and they all worked the day shift.

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However, in a statement provided to Global News the day before the hearing, Primacare argued that it is “confident that all necessary steps have been taken to manage the outbreak in our home.”

“At no time, before or during this outbreak, have our staff been without the appropriate personal protective equipment (PPE) they need to provide the highest quality care to our residents,” wrote chief operating officer Jill Knowlton.

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“Every single staff member has been fit tested for N95 masks and the model number and size needed for each person is diligently documented. We receive a fresh supply of PPE twice daily and we keep those materials available to all staff, at all times and in all areas of the home.”

Primacare also claimed that on a number of occasions, Henley Place implemented policies before formal direction from health authorities. Knowlton said the universal masking mandate was implemented at Henley Place a week before public health officials ordered it, and a one-site policy for staff employed by multiple homes was in place three weeks before the province issued its directive.

“We took these pre-emptive steps because the health and safety of our residents and front-line staff is, and will always remain, our number 1 priority,” Knowlton continued.

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In an accompanying application filed at the same time with the court, the ONA said there were similar issues gaining access to personal protective equipment at Eatonville Care Centre in Toronto, Anson Place Care Centre in Hagersville, and Hawthorne Place Care Centre. All of the facilities are under Responsive Management Inc.

“[The ONA asks] that the respondents (the LTC facilities) provide them with appropriate access to the PPE that they need to protect themselves and the residents of the facilities and to implement the required administrative controls for LTC facilities,” the court documents said.

“This includes allowing nurses to make PPE decisions on an ongoing basis at the point of care, as well as isolating and cohorting residents and the staff attending to them so that those who are infectious are kept separate from and treated by different nurses than those who are not.”

In a decision released on Thursday, Justice Edward Morgan sided with the ONA. He said the respondents suggested “nurses and other medical staff treating COVID-19 patients in LTC homes represent their own narrow, personal interests, while the privately-owned LTC homes represent broad, community-based interests.”

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“To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark,” Morgan wrote.

“Accordingly, all three steps in the test for injunctive relief have been met. Nurses are not to be impeded in making an assessment and determination at point of care as to what PPE or other measures are appropriate and required under the circumstances. That assessment and determination is to be made on the basis of their professional judgment, taking into account the immediate situation as well as relevant longer and shorter-term considerations.”

In a statement released Thursday evening, the ONA praised the court decision.

“It is truly a huge relief to know that after exhausting all other avenues, the Ontario Superior Court has agreed with ONA that these employers must follow health and safety practices to prevent the spread of infection among long-term care residents and the registered nurses and health professionals who care for them,” McKenna wrote.

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Linda Calabrese, vice president of operations for Responsive Management Inc., said in a statement Thursday evening that the company is “comfortable” with the decision.

“We hope, with the cooperation of the Ontario Nurses Association, to move to arbitration quickly so we can confirm our compliance with the chief medical officer of health directives,” she said.

“All staff across our homes have had access to the necessary PPE as outlined by the very stringent safety requirements from the experts at public health and the ministry of health. We are committed to providing a safe environment from all.”

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When asked to comment on the decision, Knowlton said Primacare too is “comfortable” with the decision and that the company also wants to go to arbitration.

“At no time, before or during this outbreak, have our staff been without access to the appropriate PPE, including N95 masks. Prior to this outbreak, every single staff member had been fit tested for N95 masks and the model number and size needed for each person has been documented,” she wrote in a statement Thursday night.

“Safety and ongoing education is a priority in our home and we understand our role in creating an environment where staff feel secure.”

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6:55 How to care for the elderly during the COVID-19 pandemic How to care for the elderly during the COVID-19 pandemic

Across Canada, long-term care homes have been of particular concern amid the novel coronavirus pandemic, as elderly populations and close living quarters leave residents and staff at particular risk.

In London and Middlesex County, 14 outbreaks have been declared at health-care institutions since the start of the pandemic, 10 of them at long-term care and retirement homes.

As of Thursday, there were COVID-19 outbreaks at 132 long-term care homes. There were 2,189 confirmed resident cases and 1,058 confirmed staff cases. There were 516 deaths.

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