Page - 428 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE428 to remedy the failed promise of the last century’s deinstitutionaliza- tion movement. The institutional and custodial sites that continue to warehouse persons with disabilities have become infectious hotspots.39 Preventing new outbreaks in those congregate settings must be an urgent priority for any strategy intending to flatten the curve. Viruses spread rapidly in these confined spaces. Cleaning of surfaces in both public rooms and living quarters may not meet public health standards. Physical distancing is impossible, and “ … unlike cruise ships, people in con- gregate living settings including the staff who work there transfer dis- ease into the general population.”40 Monitoring, prevention and treatment of COVID-19 in con- gregate settings must be narrowly tailored, non-intrusive and least restrictive of human rights. Restrictions to personal liberty—includ- ing through the inappropriate deployment of mental health legisla- tion41—are not a substitute for adequate prevention and raise serious equality and liberty considerations. Once the virus is inside an insti- tution, staff may be tempted to use heavy-handed, dangerous, and correctional-inspired responses, including seclusion and lockdowns. Even if intended to protect vulnerable persons from transmis- sion, visitor restrictions can be experienced as punitive, limit over- sight, and expose vulnerable persons to additional abuse or neglect. They impair access to family members,42 substitute decision mak- ers, or counsel. Other disability institutions have expanded bans to include communication devices, such as iPads.43 A recent judi- 39. Danny Hakim, “‘It’s Hit Our Front Door’: Homes for the Disabled See a Surge of Covid-19”, New York Times (8 April 2020), online: <www.nytimes.com/2020/04/08/ nyregion/coronavirus-disabilities-group-homes.html>; Richard Warnica, “Jane Philpott on Life Inside the Care Home Where 95% of the Residents Have COVID-19”, National Post (1 May 2020), online: <nationalpost.com/news/jane- philpott-on-life-inside-the-care-home-where-95-per-cent-of-the-residents-have- covid-19>. 40. R v JR, 2020 ONSC 1938 at para 29. 41. Brendan D Kelly, “Emergency Mental Health Legislation in Response to the Covid-19 (Coronavirus) Pandemic in Ireland: Urgency, Necessity and Proportionality” (2020) 70 Intl JL & Psychiatry. 42. Talia Ricci, “’He Can’t Understand Why He’s not Seeing His Family’: Mother of Non-Verbal Son Begs for Visitor Exemption”, CBC News (4 May 2020), online: <www.cbc.ca/news/canada/toronto/mother-of-disabled-son-begs-for-visitor- exception-1.55\1544>. 43. Sue Ann Levy, “Hospital Bans Disabled Patient from Using iPad Calling it ‘Surveillance Tool’”, Toronto Sun (1 May 2020), online: <torontosun.com/news/ local-news/levy-hospital-bans-disabled-patient-from-using-ipad-calling-it-sur-