On April 12, 2023, the Advocacy Centre for the Elderly (ACE) and the Ontario Health Coalition (OHC) filed their Notice of Application challenging the More Beds, Better Care Act, 2022 and its related regulations and practices (Bill 7) as contravening the Canadian Charter of Rights and Freedoms.
Specifically, it is argued that Bill 7 violates section 7 (the right to life, liberty and security of the person) and section 15 (the right to equal protection and equal benefit of the law without discrimination based on age and disability).
Below, I attempt to briefly summarize the Charter challenge being pursued by ACE and OHC. More details, summaries, as well as a copy of the Notice of Application itself, can be found on the respective ACE and OHC websites.
Social context
According to the 2021 Canadian census, people aged 85 and older will triple to almost 2.5 million over the next 25 years. Currently, a significant portion of people aged 85 and older have activity limitations or health-related issues such that more than a quarter of those individuals live in a collective dwelling, such as a nursing care facility, long-term care, or a seniors’ residence. As a country, and specifically as a Province, we are facing a public health crisis with our hospitals under-staffed and under-funded, a lack of available beds both in hospital and in long-term care (LTC), as well as a lack of funding and oversight of LTC to ensure homes are providing quality care to all residents. While these issues existed well before the onset of the global COVID-19 pandemic, they were devastatingly compounded. As much was confirmed by the Canadian Armed Forces Long-Term Care facility report released in May of 2020.
Purportedly, Bill 7 was put forward to address the strain on our health care system, and its struggle to meet the growing demand for hospital care. However, ACE, OHC and other stakeholders and community members have grave concerns regarding the practical impact of the legislation on one of our most vulnerable populations.
ALC Designation
Bill 7 concerns itself with a particular group of hospital patients who are designated “alternative level of care” (ALC) and are considered eligible for admission to LTC. The designation as ALC may be made by any “clinician” (i.e. attending physician, registered nurse or other named medical professional), when in their opinion the patient, “does not require the intensity of resources or services provided in the hospital care setting.” The legislation provides no guidelines, criteria or standards in making this determination.
Once the designation is made, and the clinician “reasonably believes” the ALC patient may be eligible for admission to LTC, they may request that a placement coordinator employed by Home and Community Support Services (HCSS), carry out certain actions without the consent of the patient (or their substitute decision maker (SDM)), including (but not limited to):
- Selecting a long-term care home or homes for the patient. The homes can be up to 70km away from the patient’s preferred placement in Southern Ontario and up to 150km away in Northern Ontario. This has had devastating impacts on patients who are removed from their families, communities, and supports. Many ALC patients are in their final months of their lives, such that such a placement could ultimately result in them never seeing their families again;
- Provide licensees of LTC homes with assessments and personal health information (depriving ALC patients from the protections afforded to other Ontarians under the Personal Health Information Protection Act, 2004 (PHIPA), and
- Authorize the patient’s admission to a LTC home.
Alarmingly, an ALC patient (or their SDM) has no right to seek review of, or appeal from the ALC designation, or any of the determinations that can flow from the designation.
The majority of ALC patients do not want to be in hospital, and want to return home or to a LTC home that is close to family and other supports, and is capable of providing the proper care and treatment required by the particular patient.
Bill 7 requires “reasonable efforts” to obtain consent, which must include informing the ALC patient or their SDM that a failure to apply to a LTC home, or homes (even where they do not consider the home capable of meeting the ALC patient’s needs) will result in the patient being excluded from the process of choosing a home, in deciding who may access their personal health information, and ultimately, in being charged $400 per day that the patient remains in hospital once their admission to such a home is authorized.
In this way, ACE and OHC argue that Bill 7 shifts the approach from one based on the right to informed consent and choice, which prioritizes the well-being of the patient, to a model that allows hospital staff and public officials to override these rights.
Alternatives
ACE and OHC have provided what they argue to be alternatives to the model provided for under Bill 7, including (among others):
- Providing sufficient and reliable home and community care services (i.e. palliative care) that would allow patients to remain in home and decrease the need for hospital admissions;
- Increasing funding for, and the capacity, suitability and effective organization of hospital services to better meet the needs of ALC patients (such as rehabilitative, convalescent, palliative, psychiatric and complex continuing care);
- Increase the funding for and the oversight of LTC beds to ensure homes are providing quality care, and
- Directing HCSS to make use of existing remedies to resolve the rare cases where ALC patients or SDMs are being unreasonable.
ACE and OHC’s Application is supported by fact witnesses who are experienced advocates regarding health care legislation, long-term care and elder law, as well as a number of expert witnesses specializing in palliative care, social policy, long-term care, and geriatric medicine. The supporting Affidavits can be found here.
As our population continues to age, the need for compassionate health care services will only increase. We will continue to follow ACE and OHC’s Charter challenge closely.
To read more about concerns in LTC, please check out some of our previous blogs:
Shocking Findings Revealed by the Long-Term Care COVID-19 Commission’s Report
Reflecting on ACE’s Special Lecture on Ontario’s Long-Term Care COVID-19 Commission Report
Thanks for reading!