Toronto woman proceeds with human rights case after mother dies in long-term care home

TORONTO -- Veronica Gerber was set to go before Ontario's human rights tribunal on Monday in a bid to see her mother more often during the COVID-19 pandemic.

But three days before the case was to be heard, Dorothea Gerber, 82, died at the Toronto long-term care facility where she had lived for more than a decade.

Veronica Gerber had been scheduled to appear before the tribunal seeking an interim order to restore her visitation rights to their pre-pandemic status.

Although that interim order is no longer needed, Veronica Gerber said she still plans to proceed with the case, alleging her mother's rights were repeatedly violated during her final months.

The operator of her mother's nursing home denies the allegations and says strict visitation policies have been key to the company's success in keeping the novel coronavirus out of its facilities.

But Veronica Gerber says barring family members from visiting left her mother cut off from key emotional and psychological support as the pandemic swept across the province.

"Residents are not prisoners in a pandemic prison, and their rights have been disrespected," she said in an interview with The Canadian Press.

Veronica Gerber alleges the operator, Shepherd Village Inc., misconstrued government guidance meant to curb the spread of COVID-19 and arbitrarily created policies that allowed paid caregivers into the home while shutting residents' closest relatives out.

She said she still wants to air her concerns before the Human Rights Tribunal of Ontario in order to ensure future residents in her mother's position retain access to what she sees as crucial support.

"There are residents' rights, and I don't believe that emergency orders ... trump that," she said.

Veronica Gerber said she was generally satisfied with the medical care her mother received at the Shepherd Lodge facility in east Toronto for most of her time there, noting she had dementia and used a wheelchair when she was admitted but was bed-ridden by the time COVID-19 arrived in Ontario.

In the lead-up to the pandemic, Veronica Gerber said she had unrestricted access to her mother and visited her at least once each day, often to assist with feeding and other evening routines. A paid worker also visited a few times a week to offer social interaction and companionship, she added.

Veronica Gerber first learned of Ontario Ministry of Health restrictions on visitors to long-term care homes on March 14, when staff informed her she would not be allowed in to Shepherd Lodge. The province had issued sweeping guidelines that day barring access for all but "essential" visitors -- defined at that time as the parents of ill minors and relatives of adults believed to be dying.

Two days later, during an email exchange with Shepherd Lodge's director of care, Veronica Gerber was told that the paid companion would continue to have access to the home.

Shepherd Village contradicted that position in a written submission to the tribunal, saying the paid caregiver would not have been permitted inside and adding 80 per cent of other such visitors who had access to the home before March 14 were kept out once lockdown measures took effect.

The Ontario government updated its guidance for long-term care home visits on June 10, stressing the emotional well-being of residents as a top priority. The revised directive gave individual homes discretion over developing their own policies and scheduling visits, but said they must also consider whether the person requesting time with a resident was an "essential caregiver."

The Ministry defined that role as someone providing unspecified care services to one resident at a home, noting they're often drawn from the ranks of close family members.

A lawyer representing Shepherd Village declined to comment on the case, but written submissions filed on the company's behalf argued Veronica Gerber fell short of meeting that threshold.

"While it is acknowledged that (Veronica Gerber) provided emotional and psychological comfort and support to (Dorothea Gerber) through her daily visits, such comfort and support does not constitute essential services/support that would bring her within the definition of an 'essential visitor,"' the statement reads.

"Were it otherwise, almost any family member of a resident could be considered to be an 'essential visitor,' which would entirely defeat the critical health and safety considerations underlying the (ministry's) directives and the Lodge's visitor policy."

Veronica Gerber said she did not see her mother in person between March 13 and May 19, noting she was allowed into the home at that point because of a deterioration in Dorothea Gerber's health that briefly placed her in palliative care.

She said the time apart took a toll on her mother's well-being. Dorothea Gerber was permitted to take anxiety medication on an as-needed basis, and her daughter said records show the number of requests for such treatment jumped 75 per cent between mid-March and mid-May.

She said the long absence also left the older woman feeling confused and unsettled, leading to some heart-breaking questions when the two finally reunited.

"My mom asked me if I had moved ... or did she do something wrong," Veronica Gerber said. "I had to reassure her that no, I hadn't moved, she hadn't done anything wrong, It's just I hadn't been able to come."

Both Veronica Gerber and Shepherd Village said extensive lobbying resulted in a few compassionate visits being granted once Dorothea Gerber's health improved.

Veronica Gerber was eventually classified as a family caregiver in late July and allowed to resume daily visits at that point, though they were required to be scheduled and involved staff members escorting her to and from her mother's room.

Visitation limits were increased when Dorothea Gerber went back into palliative care in mid-August, and Veronica Gerber said she was at her mother's side when she died peacefully on Aug. 28.

The Ontario government declined to comment on Veronica Gerber's case, but she said she hopes raising the matter before the tribunal prevents others from feeling the loneliness and fear that dogged her mother in her final months.

"My mother didn't want a hug from her (personal support worker). She didn't want a kiss from her (registered nurse)," she said. "She needed to connect with me and her extended family."

This report by The Canadian Press was first published Sept. 2, 2020.