Bill 218 is one of the controversial legislation in Ontario and will provide greater protection among the Ontario long-term workers in regard to liability claims. After the Bill going through several stages, it was finally voted in. Thus this means that the Bill will prevent any Covid 19 exposure-related claims from being made against a long-term care home, especially if the provider of care made honest or initiated good faith efforts that were in accordance with the stipulated healthcare guidelines (Archer & Sobat, 2021). Although this proposed legislation is a move geared towards safeguarding long-term workers from lawsuits, it is important to pay attention to the individuals whose lives were lost due to negligence (Archer & Sobat, 2021). Bill 218 is one of the laws geared towards protecting the long-term care workers against liability if someone dies; however, it is a mistake because it denies families the opportunity to hold the caregivers responsible if the death arises due to negligence. This essay, therefore, seeks to expound on the economic issue of Bill 218 and how it connects to liability rules.
An overview of Bill 218
Bill 218 is one of the Bill that was passed in Ontario as a way of providing Covid-19 liability protection. The Bill supports Ontario Recovery Act, and it emerged after Attorney General Doug Downey stated that they were seeking to ensure that every person seeks redress against gross negligence, intentional misconduct, and bad actors who may cause death to individuals as a result of not failing to make an honest effort of abiding by the COVID 19 guidance and laws (Archer & Sobat, 2021).
One of the central areas of concern that Bill 218 seeks to be practiced on includes individuals, corporations, and the larger crown that is any person. The Act provides liability in different circumstances, such as when at the relevant time, the person or healthcare worker acted in good faith per the stipulated guidelines that relate to Covid-19 (Archer & Sobat, 2021). Additionally, the person will not be held liable if the Act or omission of the person does not comprise of any gross negligence. However, protections in Bill 218 do not apply to acts or omissions of any person that may arise or may have occurred.
How Bill 218 relates to Liability Rules
When analyzing the liability rules in healthcare, when a healthcare provider engages in negligent behavior and inflicts harm to patients, they must pay for the damages or effectively compensate the patients. Long-term workers in nursing homes must provide care to their patients carefully and should not neglect their patients (Novaković, 2021). However, negligence in these homes has contributed to the deaths of a large number of people, especially during the outbreak of the Corona Virus Pandemic. As a result, long-term care workers need to be held responsible in the event a death occurs, and they did not take the necessary corrective measures to prevent the death from occurring (Novaković, 2021). With Bill 218 also coming into place to protect long-term care workers from liability, covers for their mistakes and prevent them from taking responsibility for their mistakes which would have otherwise been prevented if the necessary measures were taken (Novaković, 2021). According to a report released by the Advocacy Centre for the Elderly, the passage of Bill 218 serves as a barrier for justice against residents and families to hold responsible nursing homes that neglect or disregard their loved ones during the coronavirus pandemic, and in turn, this contributed to the loss of life (Novaković, 2021).
Arguments against Bill 218
Bill 19 notes that for a person to hold liable a person, the need to prove that the long-term worker engaged in gross negligence. Gross negligence denotes something more paramount than just failing to exercise proper skills when caring for individuals in different sectors, including healthcare institutions and long-term nursing homes. Gross negligence is built by a nebulous concept and thus may be difficult to prove how one may have engaged in such an act. Bill 218 was instituted as a strategy of helping in the recovery of Ontario after Covid 19 was declared a pandemic. Long-term care homes are among the institutions required to provide care to patients and should not break any standards of care. Based on a report released by the Canadian Institute of Health Information, the total number of deaths in long-term care nursing homes represents 69 percent of all the deaths in Canada from Covid 19 (Dunsmore, 2021). This figure is much higher than all the deaths in the country, which are at 41 percent.
The current report also indicates that approximately 4,000 individuals have lost their lives in long-term homes due to Covid 19. Despite the high number of mortalities reported in long-term care nursing homes, passing bill 218 gives the affected members the necessary compensation if the deaths result from negligence (Dunsmore, 2021). One weakness of this Bill is that it does not clearly explain what gross negligence constitutes. Additionally, the Bill requires that the individuals filing a lawsuit needs to prove to the court that the worker in the nursing home managed in gross negligence. Which, on most occasions, is something hard and cannot be proven easily (Dunsmore, 2021).
Passing Bill 218 also leads to creating a higher threshold for families of residents who are already facing unequal power dynamics with the homes they entrusted them for care (Dunsmore, 2021). The Bill requires these families to prove not only negligence but gross negligence. Most long-term homes have the required financial resources to battle with their plaintiffs (Dunsmore, 2021). As a result, with the constrained financial resources among most families, it becomes difficult to endure these court battles, and this denies them the opportunity to get compensation from these nursing homes. Additionally, the process of battling with these long-term care homes is economically draining since it involves using funds to hire lawyers to represent them in the court proceedings (Dunsmore, 2021).
One of the other weaknesses related to Bill 218 is the aspects covered in “good faith effort and public health guidance.” When analyzing the term public health guidance, it refers to mean advice, recommendations, directives, and instructions that are given with respect to public health irrespective of the manner or number of health officials (Novaković, 2021). With the implementation of these bills, critics have emerged, noting that most public health officials are not consistent when providing care. The Bill also notes that it does not require complete guidance with public health guidelines but is only based on the principle of good faith in managing different patients suffering from Covid 19.
The Healthcare sector is one of the sectors where one will need a large amount of money to get the necessary treatment. Workers in long-term homes are also required to take care of their patients, including documenting everything regarding monitoring, interpreting, and following public health guidance (Hunt, 2021). However, with the ongoing Covid pandemic, there has been an increased risk of delivering healthcare services, which has further made it difficult to access insurance services. As a result, long-term nursing homes may take it upon themselves to decide on the care that they give to their patients (Hunt, 2021). Consequently, they may deny services to patients who do not have funds, which may lead to their death. With Bill 128 being in place, it denies the families sufficient compensation since, by analyzing the scenario, negligence in long-term care homes is also a factor contributing to the loss of lives (Hunt, 2021).
Despite the shortcomings linked to Bill 218, one of its main strengths is that it offers a platform for shielding long-term workers from liability if they acted in good faith to save their patient’s life, although they failed. Any person, especially those working in long-term homes, strives to improve the well-being of their patients by providing care that does not cause any harm to them. The Covid 19 virus is associated with a wide range of complications; thus, it puts one at risk of dying. As a result, although workers may institute different measures to ensure that care is given to these patients, the patients may not make it alive. Since Long-term care nursing homes are multi-billion empires, most families may be quick to conclude that the death resulted from negligence, which may not be the case. As a result, this law being in action helps shield the nurses who acted in good faith against lawsuits that would otherwise predispose them to suffer huge financial implications.
Bill 218 is one of the legislations that protect long-term care workers against liability. Despite being passed, the Bill has several shortcomings. One of the evident one relates to creating a barrier for justice for families and residents to hold nurses accountable for neglecting their loved ones, especially during the Covid 19 outbreak. Despite such shortcomings, the Bill is important since it shields workers who instituted good faith efforts but failed to save the life of individuals. Therefore, several amendments should be instituted to ensure that the Bill does not disadvantage families and that workers engaging in gross negligence are held liable.
Archer, S., & Sobat, E. (2021). The Better Local Government Act versus Municipal Democracy. Journal of Law and Social Policy, 34(1), 1-20.
Dunsmore, R. A. (2021). Pandemic Deaths: Media Representations of Long-Term Care in Ontario as a Sociological Case Study (Doctoral dissertation).
Hunt, E. (2021). Long-Term Care Regulations in Ontario, Canada during COVID-19.
Novaković, S. (2021). Shielded from shame: civil immunity for Ontario’s long-term care facilities in the wake of covid-19. University of Toronto Faculty of Law Review, 79(2).