April 12, the Ontario Health Coalition (OHC) and the Advocacy Centre for the Elderly (ACE) filed a Notice of Application with the Ontario Superior Court of Justice challenging Bill 7 on the basis that it contravenes the Canadian Charter.
OHC and ACE gathered evidence from patients, their substitute decision-makers, and experts in support of the Application.
Bill 7 — More Beds, Better Care Act (2022) — overrides elderly patients’ fundamental rights to privacy and informed consent. Any patient deemed in need of an ‘Alternate Level of Care’ (ALC) can now have their personal health information shared by hospitals and placement co-ordinators from Home and Community Care Support Services (HCCSS) with long-term care (LTC) home operators without their consent.
Patients are told that if they refuse to go to a LTC home with space then they will be charged $400 a day to remain in hospital. These LTC homes can be located up to 70 km away from the elders community in Southern Ontario and up to 150 km from their community in Northern Ontario.
This leaves elders without family or community support in what will most likely be the last place they will live. Most residents die less than two years after going to a LTC facility.
“Bill 7 ignores the Government’s failure to provide sufficient access to care and appropriate care staff to accommodate the increasingly complex needs of LTC residents,” According to Dr. Pat Armstrong, Distinguished Research Professor at York University. “Bill 7 will increase the likelihood of ALC patients being admitted to already overtaxed LTC homes that are ill-suited or incapable of properly meeting their needs. The result will only exacerbate the problems the ‘More Beds, Better Care Act’ is ostensibly advanced to address.”
That’s because there are not enough spaces in LTC for those already on waitlists. Currently, over 40,000 people requiring 24-hour nursing and personal care are on LTC waitlists for one of the 80,000 LTC beds in the province. As of January 2023, ALC patients occupied a little over five per cent of Ontario’s 30,980 in-patient hospital beds
Bill 7 prioritizes access to LTC beds to those ALC patients in hospital effectively denying the rights of equally deserving ALC elders already on the list but not in hospital.
This perversely incentivizes seeking hospital care as a means to jump the queue while simultaneously putting more pressure on already over taxed hospital services and staff.
Dr. Samir Sinha, Director of geriatrics at Sinai Health System and the University Health Network in Toronto, says Bill 7 mistakenly establishes those approaching the end of their lives are to blame for our collapsing hospital system.
“The implication of Bill 7 is that it allows us to further inappropriately characterize ALC patients are being selfish and hijacking the system by taking a bed that really should belong to somebody with more important needs,” said Dr. Sinha.
“I find it deeply disturbing when we start actively treating ALC patients as a problematic group and use formal legislation – rushed through without any hearings – to help ‘manage’ this problem more expeditiously,” Dr. Sinha added.
Dr. Sinha says ALC patients are increasingly seen as less worthy making it easier to whittle away their rights until they are seen as justifiably disposable in an attempt to improve the health care system.
OHC and ACE believe that through absolutely no fault of their own, ALC patients find themselves the casualties of a health care system unable to provide services like home care, LTC, and hospital care that properly supply treatment, safety, and well-being.
Bill 7 deprives ALC patients of their right to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms. By depriving a cohort of very elderly patients the same rights all other residents of Ontario enjoy, Bill 7 deprives them of the right to equality under Section 15 of the Charter which states every individual in Canada is to be treated with the same respect, dignity, and consideration.
Steven Shrybman, legal counsel for OHC and ACE, maintains, “Our evidence is that by allowing for the discharge of those patients from the hospital even when they are still in need of treatment in the hospital, or compelling them to accept admission to a LTC home that cannot provide for their treatment or care or security or well being, will increase for those patients their suffering and hasten their deaths.”
Shrybman admits that there is a get out of jail free card, of sorts, that Ford could play. Section 1 of the Charter allows governments to justify measures that deprive Canadians of their Charter Rights if there is a legitimate and good reason in a free and democratic society that warrants these deprivations.
That is not the case in this circumstance.
“The bill, despite its title won’t create more beds and it certainly won’t provide anyone with better care and in fact, will deprive elderly and ill patients of the care they would otherwise have in the hospital.”
ALC patients typically suffer from comorbidities including dementia, cancer, hypertension, and chronic obstructive pulmonary disease, among other on-going conditions.
Bill 7 empowers physicians, nurses, and other ‘clinicians’ operating in a variety of hospital settings to designate patients as no longer requiring the services or resources provided in hospital care settings.
This legislation does not establish guidelines, criteria, or standards for determining who actually qualifies as ALC. Arbitrary, inconsistent, and improperly applied ALC designations can trigger Bill 7 enforcement for patients still requiring hospital treatment.
Most ALC patients want to return home or be admitted to an LTC home close to family and other supports as long as the home has the capacity to provide proper treatment, care, safety and well-being.
OHC and ACE maintain the provincial government could reduce competing demands for acute care hospitals beds by providing sufficient and reliable home and community care services that allow individuals to remain in their own homes.
They recommend increasing funding and capacity for hospital services to better meet the needs of ALC patients that cannot be properly treated and cared for at home, in the community, or in a LTC setting.
This is the body of services that hospitals historically provided, but that have suffered due to funding cuts put in place as need increased.
This article first appeared on Small Change.
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