Nowadays the Public Health Director (Directeur de la santé publique) can issue orders forcing individuals to submit to certain examination and treatment, including temporary isolation. Municipal Courts and the Court of Quebec can issue such an order also. The idea is to protect the general public from those who can potentially spread the disease among us. Though these powers are used so far on a case-by-case basis and with serious motives to believe that public health is at risk, it is not unlikely that such an order will be contested in the Court of Law one day soon.
Restrictions of access in CHSLD
The epidemic is shown to be most dangerous for seniors. For this reason, long-term care facilities (CHSLD) are restricting access for visitors. It seems to be justifiable in the view of apparent vulnerability of those protected by this measure. Indeed, if statistics tell us that the people over 70 years old are in jeopardy, it is only reasonable to limit any possibility for the virus to reach them.
Impacts of COVID-19 on access rights in CHSLD: question of isolation
Yet, on the other hand, thinking of immediate survival should not shadow the fact how drastic decrease of the joy of life is, as well as the long-term consequences. Many senior persons in isolation have lost the essential presence of their family around. This could only add to the sense of helplessness and increase subjective vulnerability of the same people. Severe stress because of sudden loneliness and disorientation might produce drastic after-effects, also dangerous for bodily and mental health of the elderly. Presence of family members and close friends undoubtedly serve the best interest of seniors in precarious health (including mental health) situations. Being forcefully deprived from those comforting and appeasing contacts, many old people suffer. Also, family members often provide their seniors with additional care and entertainment, which is simply unavailable with regular staff, however well-trained it is.
This is without even mentioning quite understandable stress, anxiety, doubts and sometimes panic of those younger people who cannot visit their older family members, cannot take care of them in their regular manner. How do we evaluate suffering of those, whose parents and grandparents die (or might die) while their children and grandchildren could not even be there in the last hours?
Is there a reasonable solution?
Of course, first and foremost we have to hope that CHSLD workers will take into account all the above-mentioned and do their best to reasonably accommodate the needs of the senior persons in the circumstances. Certain means of telecommunication and additional sanitary measures could facilitate contacts with family members. But what if some CHSLD staff members show unreasonable rigidness and inflexibility? Do we have any legal ways to maintain connection with our dear people?
The Quebec Charter speaks of several rights, including dignity and respect for private life, while the Canadian Charter guarantees also the right for life, liberty and security. Yet both Charters provide for general public interest to be balanced with the individual rights. These days, facing rather unprecedented situation, our Courts are still to find and show where particularly the balance lies in these circumstances.
What is clear, though, is that the balance cannot be skewed totally — one way or another. Senior people’s dignity, integrity and fundamental rights require some accommodation allowing their relatives and friends to be able to continue to appear and participate in everyday care. Of course, this would mean necessarily some additional procedures to be put in place to accommodate senior people’s needs in the new reality. Probably, some staff increase is required, volunteer status might be considered with specific obligations put on those relatives who want to continue to visit their close and dear old family members. Yet there is no doubt that simply ignoring senior people’s feelings and material situation would be a serious infringement on their rights.
Our lawyers stand for you:
The need to protect rights even in the situation of public emergency is one of the major reasons why the government saw it fit to give law firms the status of “essential services”, allowing them to stay open and continue to work. The Allen Madelin lawyers are on their posts these days. Consultations are available via phone: 514-904-4017 and videoconference (appointment can be made via email: [email protected]). It is important that we all stay cautious, reasonable, but do not allow panic to win over.
