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Groups say Ontario long-term care law violates Charter rights

Posted: April 14, 2023

(April 13, 2023)

By: Jeff Gray, Globe and Mail

Advocacy groups for seniors and public health care have filed a court challenge of Ontario legislation that allows crowded hospitals to force some elderly patients to accept places at nursing homes without their consent – or face $400-a-day fines.

In a notice of application filed with Ontario Superior Court on Wednesday, lawyers for the Ontario Health Coalition and the Advocacy Centre for the Elderly argue the legislation violates the Charter of Rights and Freedoms, denying patients their right to “life, liberty and security of the person” and unfairly discriminating against them based on age.

The legal filing says the legislation would likely see patients sent to homes “where they will be less likely to receive the treatment and care they require, and in consequence they will experience increased suffering and a hastening of death.”

The two groups, which had last year vowed to launch a legal fight against Ontario’s legislation, known as Bill 7, are holding a news conference on Thursday at Queen’s Park to outline their case, which includes affidavits from medical experts. The legal battle will also include testimonials from patients and their families that have been subjected to the new law, the groups say.

Andrew Kennedy, a spokesman for Attorney-General Doug Downey, said Wednesday that the government would not comment because the matter is before the court.

The government has said its legislation was needed to move thousands of what are known as ALC or “alternative level of care” patients out of overcrowded hospitals. These patients are often elderly people who no longer need hospital care but are on a waiting list for a nursing home. Bill 7 gave hospitals the power to enroll them in another home, without their consent – although the government said attempts would be made to gain the consent of patients.

The legislation prompted an outcry from the opposition and advocacy groups when Long-Term Care Minister Paul Calandra fast-tracked it through the legislature last year. It took effect in the fall.

Critics had warned the new bill could see elderly people sent to homes many kilometres from their families, concerns Mr. Calandra at first dismissed as fearmongering. But he later confirmed patients could be sent to homes within a 70-kilometre radius in Southern Ontario, and a 150-kilometre radius in Northern Ontario, while facing $400-a-day fees for refusing to leave hospitals. (Hospitals already had the power to charge even higher fees to discharged patients who refused to leave.)

In their legal case filed on Wednesday, the plaintiffs say Bill 7 “singles out a particular cohort of older, ill and very vulnerable patients to be deprived of their right to informed consent about where they will live and the health care they receive.”

They say the government could instead better fund home-based health care services, hospitals and long-term care homes to ensure these patients, who are often in the final months of their lives and have dementia or other serious health problems, can get the care they need.

The legal application warns that patients could be sent to homes where staff and residents don’t speak their language, and to homes with “a poor record of regulatory compliance and/or patient care.” It also says some patients are wrongly designated as ALC patients and cannot be cared for properly in a long-term care home.

Thousands died in Ontario nursing homes during the height of the COVID-19 pandemic. The military was brought in to staff a handful of the worst-hit homes and reported disturbing scenes of neglect. The government has since vowed to improve conditions and care in the sector.

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