The Wettlaufer Report: Lessons for Employers Supporting People with Disabilities

Between 2007 and 2016, Elizabeth Wettlaufer, a Registered Nurse, murdered at least 8 people while on duty working for two (2) Long Term Care homes in Southwestern Ontario.   These murders went undetected for almost a decade and Wettlaufer continued working as a nurse, supporting vulnerable people, despite performance concerns and indications that something was clearly amiss.  As a result, a public inquiry was initiated and on July 31, 2019 the Long-Term Care Homes Public Inquiry Report (the Wettlaufer Report) was issued.

The Report includes 91 recommendations for strengthening the Long-Term Care sector to reduce the likelihood of such an event happening again. Many of these recommendations have natural application outside of long-term care, including in retirement homes, health, home care and community services , developmental services, and child welfare.  Indeed, any agency responsible for the health, safety and well-being of people who are potentially vulnerable would be well advised to consider and adopt many of the best practices and recommendations included in the Wettlaufer Report.

Below we highlight some of the Report’s key recommendations that have broad application to agencies supporting people with vulnerabilities:

  1. Increase Training of Administrators
    • Managers should receive training on the best practices in screening, hiring, management, and discipline of staff responsible for care of vulnerable persons.
    • Managers should also be trained on how to properly conduct workplace investigations.
    • Further, managers should receive training on their reporting requirements under applicable legislation and regulation (for instance the Quality Assurance Measures Regulation in the Developmental Services sector)
    • Finally, managers should receive training in how to assess the suitability of new employees during their probation.
  1. Increase Training of Non-Managerial Staff
    • Staff providing care to persons supported should receive comprehensive and ongoing training on their reporting requirements under applicable regulations.
    • Staff should also receive regular training regarding any medication administration system in place, and training on the identification and reporting of medication incidents.
    • Policies and procedures should be implemented requiring staff to report risk events and complaints up to their supervisor. The importance of prompt reporting is key in preventing misconduct.
  1. Implement Robust Hiring and Screening Processes
    • Service providers should adopt a hiring and screening process that includes robust reference checks and background checks and specifically be on the lookout for unexplained gaps in the candidate’s resume or if the candidate was terminated from prior employment. Inquiries of this nature should be conducted carefully with a view to avoiding potential allegations of discrimination in the hiring process
    • There should also be close supervision of such candidates during the probationary period.
  1. Increase Spot Checks
    • Service providers should arrange for unannounced spot checks of service staff, including on weekends. A lack of such supervision onsite contributed to the Wettlaufer tragedy. Such unannounced visits could deter persons intending to harm residents.
  1. Create Complete Employee Records
    • Service providers should maintain a complete record of discipline for each employee to allow for easy review in making discipline decisions.
    • Service providers should also contain a permanent personnel file containing an employee’s performance history and a record of complaints and concerns.
  1. Create Clear Procedures for Reporting Unusual Incidents
    • Service providers should establish processes for reporting unusual incidents (such as unauthorized staff access to sensitive areas), with clear time frames and methods.
    • All unusual incidents should be reported promptly up the chain to a single designated person within the organization. That designated person should investigate such incidents and prepare and maintain a record of them. All such incidents should be categorized as high risk and important. Such processes should be made clear to staff. This is particularly important where there is a risk to client safety, security, or theft of medications.
    • Service providers should make written reports indicating all of the steps taken to investigate an unusual incident.
    • Service providers should provide their staff with additional training in how to use reporting systems in place, as well as their reporting requirements. There must be a common understanding of what must be reported, how it must be reported, and when it must be reported. This is necessary to allow oversight of care of persons supported.
  1. Avoid or Restrict Subcontractors and Temporary Staffing Agency Use:
    • Where possible, service providers should avoid the use of subcontractors.
    • If subcontractors are necessary, formal practices for verifying that they are reporting complaints and risks must be established. There must also be rigorous screening and background checks of all subcontracted staff, by the subcontractor if necessary.
    • A process should be established to verify that subcontractors are adhering to screening and reporting requirements.
  1. Audits for Compliance:
    • Organizations should regularly perform audits to ensure that they are carrying out their obligations related to hiring, screening, education, training, and incident reporting.
  1. Train Staff on Risk of Staff Member Intentionally Harming Persons Supported:
    • Service providers should deliver training and education to staff on the possibility that staff may intentionally harm those in their care. This should be addressed in the broader context of risk management, abuse prevent, outcomes, and professionalism, rather than as a standalone matter.
  1. Implement “Just Culture”:
    • Service providers should cultivate “just culture” principles, meaning that human error is dealt with openly rather than punitively. This allows team members to discuss errors and focus on the safety and well-being of residents rather than worrying about the consequences of making an honest mistake. This also deters intentional harm, as team members can report suspicions or concerning behaviors.

Most organizations already have robust polices, practices and procedures in place to limit the risk of Wettlaufer types of events from occurring.  At the same time, in these heavily unionized sectors the interests of people receiving supports (patients, clients, or people supported) are often at odds with employee interests.

    • Union opposition to increased scrutiny, supervision, spot checks, and surveillance is well documented in the arbitral jurisprudence.
    • Union solidarity often actively discourages union members from reporting or testifying against a union “sister” or “brother”.
    • Evidence gathering is further complicated by the unsupervised nature of the work.
    • Similarly, entrenched terms of collective agreements limiting employer record keeping related to discipline (commonly known as “sunset clauses”) may also serve as a barrier to discipline and termination.

All of these challenges, combined with prolific underfunding of these sectors, means that Employers are more than a little reluctant to litigate grievances related to discipline and termination issued to employees for abusive or negligent conduct.  Settlements in which disciplinary records and the true reasons for termination are rendered confidential and employee files “sealed” are very common – with the result that an abusive employee’s next employer may not be able to properly assess candidacy and protect the people it supports.

Vulnerable Sector Screenings are also of limited value where the police fail to lay charges and convict due to capacity issues of the victim.

The recommendations set out in the Wettlaufer Report can help employers to overcome these challenges.

As always, PooranLaw is here to assist with all of your HR needs.  Contact Cheryl Wiles Pooran to discuss how you can set your organization up for success.