(September 23, 2024) By: Liam Casey, Global News<\/p>\n
A new Charter challenge that got underway Monday will test the constitutionality of a controversial Ontario law that allows hospitals to place discharged patients into long-term care homes not of their choosing or face a $400-per-day charge if they refuse.<\/p>\n
The Advocacy Centre for the Elderly and the Ontario Health Coalition argue the law, known as the More Beds Better Care Act or Bill 7, violates the Charter of Rights and Freedoms.<\/p>\n
The province disagrees.<\/p>\n
One core item the court will address is whether the new law has fulfilled its purpose by improving the flow of patients. Documents filed with court reveal the two sides have reached different conclusions on that question.<\/p>\n
Premier Doug Ford\u2019s government rammed Bill 7 through the legislature within days in September 2022, bypassing public hearings.<\/p>\n
The law allows hospital placement co-ordinators to choose a nursing home for a patient who has been deemed by a doctor as requiring an \u201calternate level of care,\u201d or ALC, without consent.<\/p>\n
They can also share the patient\u2019s health information to such homes without consent. Patients can also be sent to nursing homes up to 70 kilometres from their preferred spot in southern Ontario and up to 150 kilometres away in northern Ontario. The law sparked outrage among seniors.<\/p>\n
In its factum filed with court, the organizations opposing Bill 7 say it has not had its intended effect of reducing the number of so-called ALC patients. They point to government data from Ontario Health that shows the number of these patients has actually increased by 30 per cent more than a year after the law took effect.<\/p>\n
There were about 2,300 discharged patients waiting in hospital for a spot in a nursing home at the end of January, the court documents say.<\/p>\n
\u201cThe evidence belies any contention that Bill 7 has actually expedited the transition from hospital for the vast majority of ALC-LTC patients,\u201d the organizations say.<\/p>\n
The primary reason for the bottleneck is not the patients\u2019 fault, they say.<\/p>\n
\u201cThe most significant cause of delay in transitioning from the hospital is simply the lack of long-term care beds as evidenced by the very long wait lists for admissions particularly for homes that provide better and more suitable care,\u201d the organizations wrote.<\/p>\n
Because the law is ineffective, they argue, it is arbitrary. They say the law should be struck down.<\/p>\n
Ford defended the law Monday, but lamented the threat of fines.<\/p>\n
\u201cI\u2019m never in favour of that,\u201d he said at an unrelated news conference.<\/p>\n
He said hospitals need bed capacity and that discharged patients should be in a long-term care home, not a hospital. The hospitals appreciate the new law, he said.<\/p>\n
\u201cThere\u2019s no one happier than the CEOs of all the hospitals, I\u2019ve talked to them, and it\u2019s the right thing to do for elderly people,\u201d Ford said.<\/p>\n
The Ontario government argues in court documents that the increased number of so-called ALC patients is not proof of the law\u2019s ineffectiveness, but due to a spike in population growth.<\/p>\n
The province also points to evidence of several hospital administrators who support the law and say it has increased patient flow.<\/p>\n
Trillium Health Partners, which runs two large hospitals in Mississauga, Ont., said the law has helped move 240 ALC patients to nursing homes over a recent three-month span.<\/p>\n
\u201cIn the absence of Bill 7, I expect patient flow would decrease, as more acute beds would be occupied by patients who do not require acute care, leading to more patients waiting for a bed,\u201d Scott Jarrett, the chief operating officer of Trillium, said in an affidavit.<\/p>\n
Other hospital leaders cited similar progress.<\/p>\n
The Advocacy Centre and the Ontario Health Coalition also say the law largely targets seniors of poor mental and physical health and deprives them of their ability to choose where to live and how their health information is shared.<\/p>\n
More than 80 per cent of ALC patients are 65 or older and the vast majority live with incurable conditions usually associated with age. The law, the two organizations argue, interferes with the Charter\u2019s right to life, liberty and security.<\/p>\n
\u201cBill 7 infringes an ALC-LTC patient\u2019s liberty rights by depriving them of personal autonomy with respect to their medical treatment and health care,\u201d they argue.<\/p>\n
\u201cSimply put, Bill 7 clearly deprives ALC-LTC patients of the fundamental rights to informed consent to where they are likely to spend their final days, and to the protection of their personal health information.\u201d<\/p>\n
What both sides agree on is that there are not enough hospital or long-term care beds in Ontario. While the province is building more hospitals and incentivizing the construction of dozens of nursing homes, there\u2019s nowhere near enough supply to meet demand, the documents say.<\/p>\n
Provincial lawyers say the law is needed to open up beds for patients needing to get into a hospital.<\/p>\n
\u201cThe purpose of a hospital bed is not to act as a waiting area for (long-term care) home admission,\u201d the province says.<\/p>\n
Ontario argues patients do not have a Charter right to live free of charge in a hospital after discharge. Nor does the law discriminate on the basis of age or disability, it says.<\/p>\n
\u201cBill 7 does not infringe anyone\u2019s Charter rights,\u201d provincial lawyers wrote.<\/p>\n
On Jan. 31, 2024, there were 2,243 ALC patients awaiting a spot in a nursing home who had spent a total of nearly 200,000 days in hospital beds, the province said.<\/p>\n
The Charter does not protect against the sharing of private health information, provincial lawyers argue, pointing to several other laws that lay out how personal health information can be shared, including under court orders.<\/p>\n
The province also said the law does not force patients into any particular nursing home. The patient can refuse such a placement.<\/p>\n
\u201cThe consequence for an ALC patient who refuses to leave hospital despite being discharged is purely economic: they must pay a portion of the cost of the publicly funded hospital bed that they have chosen to occupy,\u201d the province said.<\/p>\n
The organizations say the threat of a $400-per-day fine is \u201ccoercive,\u201d while the province contends it acts as a \u201cdeterrent\u201d to patients in the effort to get them to agree to be moved to a home they didn\u2019t choose.<\/p>\n
Only five people have been charged under the law, the health minister\u2019s office said recently.<\/p>\n
The threat of a fine didn\u2019t deter Ruth Poupard\u2019s family. Michele Campeau, who has power of attorney for her 83-year-old mother, refused a hospital\u2019s attempts to force Poupard into a long-term care home Campeau hated in Windsor, Ont.<\/p>\n
H\u00f4tel-Dieu Grace Healthcare began charging the family $400 per day and they ended up with a $26,000 bill in the spring, which Campeau refused to pay. Poupard ended up in her top choice for a nursing home.<\/p>\n
By mid-September, no one had come calling for the money, Campeau said.<\/p>\n
\u201cI would encourage others to fight back because in the end, the fight is worth more than putting your loved one in a horrible situation,\u201d Campeau said.<\/p>\n
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