Visitors to some long-term care centres subject to COVID-19 waiver before seeing loved ones

Some long-term care operators are now asking visitors to sign a waiver acknowledging they may be putting their health at risk while visiting their loved ones — and in doing so, giving up their legal right to sue the facility for any COVID-related issues.

The waiver focuses on signees' rights to sue long-term care operators over the virus

Rob Wipond has a relative staying at a Bethany care home in Calgary. (Colleen Underwood)

Some long-term care operators are now asking visitors to sign a waiver acknowledging they may be putting their health at risk while visiting their loved ones — and in doing so, giving up their legal right to sue the facility for any COVID-related issues.

The waiver was drafted by lawyers for the Alberta Continuing Care Association (ACCA) in response to concerns from its members in light of the loosening of visitor restrictions last month. The letter from the association was provided to CBC News by a concerned visitor, Rob Wipond​.

"I read the waiver and went, 'Oh my God, what is this,'" said Wipond, who has a relative staying at a Bethany care home, run by the Bethany Care Society. "Then I thought, 'No way, this is outrageous.'"

Since the pandemic hit, nursing homes and care centres in Alberta have been hit hard.

A report in June from the Canadian Institute for Health Information showed Alberta had the fourth-highest proportion of COVID-19 deaths at long-term care facilities among Canadian provinces.

As of Friday, 153 residents at continuing care facilities have died.

Wipond says Bethany issued a letter and the waiver via email on July 23.

Since then, Wipond has reached out to Bethany Care, the ACCA, the province, and health care advocates to address some of his concerns — but so far, he said many of his questions have gone unanswered.

The ACCA declined to comment for this story, so it's unclear how many of its members have decided to issue this waiver.

On its website, the association says it provides services for more than 13,000 long-term care and designated supportive living individuals.

CBC News reached out to several different facilities in the province. 

In an email, a spokesman for the Good Shepherd Foundation said "the waiver is being used by most if not all the members of the Alberta Continuing Care Association," calling it an "industry-level practice."

Mike Conroy, CEO for the Brenda Strafford Foundation — which has five homes In Calgary and surrounding area — said the foundation drafted its own waiver in consultation with its legal team, similar to the one from the ACCA.

Conroy said it is in response to a number of class-action lawsuits stemming from COVID-related deaths at long-term care homes across the country.

"The new visitation policy in continuing care sites could expose visitors to risks of contracting COVID-19. This waiver is intended to protect providers from legal action should visitors contract the virus and experience adverse outcomes from a choice they make freely (i.e. visiting the continuing care site)," Conroy said in a statement.

"The waiver also facilitates being transparent about the risks involved with visitation."

CBC News heard back from one other operator, the Good Samaritan, who said it was still deciding whether to issue it to its visitors.

Validity of the waiver

There are two parts to the waiver Wipond received and shared with CBC News. 

Wipond said he has no problem with the first part, which states visitors will complete the health screening assessment and comply with all of the facility's protocols related to COVID-19.

But he said he finds the second part offensive.

"I just find that language so over-the-top, so overreaching, and abusive," Wipond said.

Part two removes the centre's responsibility if anyone contracts COVID-19 as a result of visiting the centre. It also states signees give up their right to sue.

Calgary lawyer Mathew Farrell with Guardian Law said that at first glance, the waiver appears valid.

"When you sign a waiver, you aren't just saying that you understand an activity is inherently risky, and you won't hold the company responsible for things that are not their fault," Farrell said. "You are also agreeing that you won't hold them responsible for things that are their fault, where they should know better — that's what a waiver does."

Farrell is not involved in any of the class-action lawsuits but his firm, Guardian Law, is involved in a $25-million class-action lawsuit against the company that operates the McKenzie Towne Continuing Care Centre in Calgary.

The lawsuit was filed after an outbreak claimed 21 lives, and led to a total of 62 residents and 44 staff testing positive as of May.

He said while businesses can't make people sign a waiver, they can stop people from entering unless they do — which he said in this case could be challenged in court down the road.

So Farrell said he advises visitors to try to argue their way out of signing it.

If that doesn't work, he suggested crossing out and rewriting the parts they don't agree with and then signing it.

Finally, if that isn't possible, Farrell said to sign it and then send yourself an email stating you don't agree with the waiver, and outlining the steps you took to avoid signing it.

"At least if you came to me with that kind of evidence, then I would have a better chance of arguing that this wasn't fair … there is no guarantee it will be successful," said Farrell.

Signing required?

Wipond said initially he was confused about whether he had to sign the waiver in order to visit his relative, because he said the language is unclear.

A letter, written by Bethany Care staff, reads: "Please bring the 'Release and Waiver Agreement' before your first visit to Bethany Calgary."

And he said the waiver itself indicates it's an agreement allowing visits for a period of one year.

But it also suggests consulting one's lawyer before signing the document.

Wipond said after a lot of prodding, an ACCA spokeswoman said he did not need to sign the document before visiting his relative.

"You clearly are misleading people into thinking that they have to sign this document, and you have not told them that they don't have to — until they complain until they ask a lawyer. And that's not appropriate," he said.

But Wipond said if signing is optional, he's asked Bethany and the ACCA why waivers are required. And so far, he said he hasn't had a good explanation why.

CBC News asked the Bethany Care Society about the waiver's purpose. The organization provided a statement that reads, in part:

"We will work vigorously to defend the life and health of each resident and to protect their home. This includes reliance upon waivers, where appropriate," the statement reads. "A waiver and release is appropriate where the life and health of a resident is at risk and waivers are being used by many continuing care operators across Alberta for this purpose."

A spokesperson for Alberta Health said some continuing care operators are using visitor waivers as tools that ensure visitors are aware of the COVID-19 risks to themselves and others before entering the facility — and the precautions they are required to take.

But the spokesperson added that as far as the department is aware, no one has been refused entry to see a loved one for not signing the waiver. If they are, the province said to file a complaint.

Softer language

Wipond said if the purpose is just to remind people about the risks associated with visiting a centre, part one of the waiver is sufficient.

He said he ended up initialling part one and crossing out all of part two before handing it to the desk at the Bethany care home.

He said he believes part two should be removed, or at least rewritten using softer language.

"Can't they emphasize the risk without being misleading and deceptive about the requirement to sign, and without threatening and scaring people away from visiting their ailing loved ones?" he asked.

"Can't they simply say, 'If it's determined that you did not follow proper protocol and people got infected, you could be held liable?' That would be enough."

He said the responsibility should not be thrust upon visitors alone — he said the government and the operators should be accepting some responsibility for the risks associated with the virus.