Boring as all Hades

Thoughts of the Westray Bill while opining on the person named Revera Incorporated

By Anne Thompson

Three things are needed to deliver safe personal care: Space, Staff, Stuff.

Among other things and put quite simply, Revera Incorporated controls the funds that supply the personal care facility (Space) the number of appropriately trained employees (Staff) necessary to supply the product of safe personal care to a recipient of this care as a recipient would care for themselves, in loco sui, with the equipment (Stuff).

From its description of the Revera Inc.’s institutional functions, Info Source: Sources of Federal Government and Employee Information, writes, “Revera Inc. operates an integrated interdisciplinary organizational structure whose corporate mandate is to provide direction, support and services to the various units which operate the core business of the company: the provision of accommodation, care and services predominantly to the elder population through its long-term care facilities and retirement residences.”

Under Canadian law a corporation is considered to be a legal person who can own property, borrow money, pay taxes, hire employees, and commence or be subject to a lawsuit.

The Protection for Persons in Care Act was passed in 2001 to assure Manitobans the treatment they receive in personal care homes will be the necessary nursing services we expect and believe our loved ones will have delivered to them, especially with regard to treatment of persons affected by age-related physical and/or cognitive capability and capacity diminishment.  Schedule A in Personal Care Services Insurance and Administration Regulation sets out the complete list of goods and services to be provided in a personal care home.

In The Health Care Directives Act, referred to as chapter H27 of the Continuing Consolidation of the Statutes of Manitoba, “treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment.  A dictionary definition of “treatment” gives the meaning as the care in the manner in which someone behaves toward or deals with another person or thing and not exclusively medical care for treatment of illness or injury.

Governance, whether its quality is ‘good’ or ‘bad’, pretty much means “how we get things done around here”.  To the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), governance means “the process of decision-making and the process by which decisions are implemented (or not implemented).”  They continue to write of the 8 major characteristics associated with good governance: participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, and follows the rule of law.

Of accountability, they write it is a key requirement of good governance.  “In general an organization or an institution is accountable to those who will be affected by its decisions or actions.”  For me, this would include the family and close friends of the individual in a personal care home.

I found a legal concept, ‘cui bono’, that pretty much means, “follow the money and see who benefits financially”.  This concept suggests those in control of initiating cascading events leading to the contravention of rules can often be found by investigating those who would have benefited financially from said behaviour, even if it is not immediately obvious.

As far as I can tell, the government’s care requirements (The Protection for Persons in Care Act) equal necessary nursing services, with a reasonable level of safety on the side.  And this is where the governance, or management, given by the person, Rivera Incorporated, comes in.

I like to use people’s own words when judging their choices and/or behaviour.

“Revera’s leadership team has decades of combined experience in diverse fields including the medical, pharmaceutical, biotech and hospitality industries. Their experience guides Revera to be the leader in the Canadian senior living sector …”

–from Revera website, under ‘Our Leadership’

“We step up and do the right thing, taking personal accountability for all of our actions.”

–from Revera website list of values, under “Integrity”

“Revera is committed to good governance.”

–from Revera website, under ‘Our board of directors’

“Revera is a leading owner, operator … in the senior living sector.”

–from Revera website, under ‘Corporate profile’

A scenario for your consideration:

• An individual in a personal care facility is under the responsibility of medical director of the facility.
• For the purpose of our discussion, this individual is certified incapable due to diminished cognitive ability, and a substitute decision-maker is assigned, per legislation.
• The individual in care’s substitute decision-maker will ensure that neither negligence nor abuse occurs.
• The individual in care’s substitute decision-maker will advocate for the best interests of the individual, even with legal means, if neglect or abuse is witnessed.
• The substitute decision-maker ensures the individual in care receives treatment in accordance with what the substitute decision-maker believes to be the individual ‘s best interests, especially if the individual in care’s condition will deteriorate or is likely to deteriorate without good treatment.
• The substitute decision-maker is not in the facility 24 hours a day, 365 days a year and the presumption of monitoring the needs of the individual and assisting with the activities of daily living, like cleaning oneself, trimming nails, and changing out of soiled clothing, will continue since decisions regarding the treatment of the resident are now yielded to the staff at the facility.
• Decisions otherwise made by any substitute decision-maker during the time away from the individual, such as the above mentioned, are now made by staff at the facility.
• The decision to give or to withhold any sort of treatment will be made by staff, now the de facto substitute decision-makers for the individual.

In medicine, the most responsible physician (MRP) is ultimately responsible for overseeing the care of an admitted patient.  But I assert that neither the staff on site nor the medical director of the facility can or should be held as the ultimately most responsible person (MRP).  The medical director of the facility can only manage the staff supplied and is not in control of the funds that would allow a sufficient number of appropriately trained staff with sufficient time to deliver the necessary level of care to individuals Manitobans expect they would receive.

Responsibility and accountability lie with Revera Incorporated.  Revera Incorporated is in control of funds that direct the supply of appropriately trained staff to health care facilities which influences directly or indirectly how the staff does work or performs a task.  This means Revera Incorporated influences directly or indirectly control over the care and treatment given to or withheld from any patient in the facility so controlled.  Revera Incorporated  can be deemed the ultimately most responsible person (MRP) and de facto substitute decision-maker for the cognitively diminished resident in their facility.

In a CBC article dated January 7, 2019, Larry Roberts, at the time Revera Incorporated’s senior manager of corporate affairs, said, “Revera allocates these resources fully to meet the government’s care requirements, and any unused care staffing funding is returned to the government,” thus demonstrating control of funds that direct the supply of and time allotment for the adequately trained staff mentioned above.

I submit Revera Incorporated can be identified as the operator of a health care facility ultimately responsible to protect the patients of their facility from abuse or neglect and to maintain a reasonable level of safety for them, and can therefore be held in contravention of The Protection for Persons in Care Act, section 2, chapter P144 of the Continuing Consolidation of the Statutes of Manitoba.

I put forward the idea that a conflict of interest exists, arising from making greater profit or making less profit depending on allocation of the funds used to deliver the necessary nursing care that Manitobans expect.

Revera Incorporated – also under a duty to take reasonable steps to prevent hurt or injury that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature to any other person arising from that work or task over which it has direct or indirect control – shows a reckless disregard for the lives or safety of the patient-residents by realizing a profit instead of directing funds to supply a sufficient level of appropriately trained staff with sufficient time required to supply necessary nursing services that would protect the patient-residents of the facility from harm by negligence.

Not only has Revera Incorporated as operator of a licensed health care facility the duty to take steps to prevent harm that might arise out of insufficient numbers of appropriately trained staff, it has, as a person and as a service provider, a duty to report to the minister or the minister’s delegate, the Protection of Persons in Care Office (PPCO), that a patient is likely to be neglected because of insufficient numbers of appropriately trained staff, per section 3(1) of The Protection for Persons in Care Act.

I further submit Revera Incorporated has failed in its duty to provide adequate care for vulnerable patients in their facilities over an extended period of time, has failed to protect patients of their long-term care facilities from neglect, has failed to supply the necessary nursing services stipulated in legislation, and has failed to maintain a reasonable level of safety for their patients.  I have come to this conclusion from the constant barrage over the years of anecdotal declarations printed in the Winnipeg Free Press of the effects of understaffing on patients’ mental and physical wellbeing, and especially now with the ‘COVID’ spotlight highlighting the quality of governance at for-profit personal care homes.

Ronald Siwicki was given 21 months for not calling for help.  “This case is about the consequences to an adult child [a person] who has failed in his duty to provide adequate care for a vulnerable parent in difficult circumstances,” Justice Janice leMaistre wrote on behalf of the three-judge panel.

A corporation who contravenes the Act is guilty of an offense and is liable on summary conviction to a fine of not more than $30,000.  It’s really not very much money in the big scheme of things.  Having this person, Revera Incorporated, face the consequences of its choice of behaviour could also serve a public education function, and from this experience of negative consequences for its choices in behaviours, corporations may yet learn from the recent past the lessons of ‘duty to’.

I hope that somewhere along the informal communication connections we humans/natural persons have, will be found a way to bring about the beginning of the end to the constant stream of reports from friends, family, and in the media of undignified treatment of individuals in personal care homes.