The More Beds, Better Care Act: Dangers disguised as legislation, part one
Co-written by: Kim Gale and Palak Mahajan
Each year, thousands of patients are admitted to the hospital in Ontario because of a need for acute care. Once the issue of acute care is resolved, these patients wait in the hospitals for another level of care and are designated as alternate level of care (ACL) patients.
ALC patients may also be waiting for another level of care, for instance, rehabilitation, palliative care, complex continuing care, etc. Some ALC patients might be waiting for home- or community-care services.
Most of these patients are elderly, unable to care for themselves and are among the most vulnerable members of our community. A substantial number of these people do not have the capacity to make decisions about their health care and, therefore, rely upon a substitute decision-maker to do so.
Bill 7, More Beds, Better Care Act, 2022, S.O. 2022, c. 16 (Bill 7), adversely impacts these already vulnerable members.
Patients are typically able to select the long-term care home to which they want to be transferred. Generally, they choose the one that keeps them close to home and loved ones, but other factors can be involved, such as choosing a culturally or religiously appropriate facility.
Bill 7 takes away a very critical choice that is available to elderly patients: the choice of where to live, including a preferred long-term care home. Bill 7 gives the government the legal authority to make this choice for the patient and transfer a patient from a hospital to a long-term care facility that is not on their list, even against their will, if their health-care team believes they could be cared for elsewhere.
A Charter challenge has been launched against Bill 7 also, which is discussed in the second article of this two-part series.
What is Bill 7?
On Aug. 21, 2022, the Government of Ontario passed Bill 7 through the provincial Parliament. Bill 7 only applies to ALC patients who are waitlisted for long-term care homes.
Bill 7 states:
- To free up acute care beds, ALC patients can be temporarily relocated to a home they are not waitlisted for, with or without their consent.
- While ALC patients can be transferred without consent, this transfer cannot be implemented without reasonable efforts to obtain consent.
- Under no circumstances will an ALC patient be physically forced to move to a long-term care home they are not waitlisted for.
Some concerns have also been raised that ALC patients may be required to pay the uninsured rate of $1,800/day to stay in an acute-care bed in the hospital.
Under the ambit of Bill 7, Health Minister Sylvia Jones and Long-Term Care Minister Paul Calandra have stated that hospitals will be required to charge a daily fee of $400 to patients who have been discharged by their doctor and refuse to be moved to a long-term care home not of their choice.
How is the bill problematic?
Bill 7 was made to address problems of the health-care system of Ontario struggling to meet the demand for hospital care. However, Bill 7 is, in effect, a violation of human rights.
The most glaring errors in Bill 7 are that it:
Singles out a particular cohort of older, ill and very vulnerable patients to be deprived of their right of informed consent about where they will live and the health care they receive.
Authorizes the discharge from hospital of ALC patients, some of whom still require treatment in hospitals, for admission to long-term care homes that have not been willingly chosen or consented to and that may not be able to provide for their treatment, care, safety or well- being. Therefore, Bill 7 results in needless physical and psychological suffering and will hasten the deaths of some of the ALC patients.
Prescribes that the designation of a patient as an ALC patient may be made by any “clinician” (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.”
States that once the ALC designation is made, and the clinician “reasonably believes that an ALC Patient may be eligible for admission to a long-term care home,” the clinician may request that a placement co-ordinator employed by Home and Community Support Services, an Ontario Crown Agency, carry our certain actions with or without consent of the ALC patient or their substitute decision-maker (SDM) and the placement co-ordinator can proceed to do so even without a request from the attending clinician.
Stipulates that an ALC patient has no right to seek review of, or appeal from, the designation that they are ALC or from any of the determinations and actions that can follow from that designation.
Does not account for the lack of evidence that ALC patients or their SDMs behave unreasonably or refuse to compromise when choosing long-term care homes to which they will seek admission, apart from very exceptional cases. Nevertheless, Bill 7 fundamentally alters the consent-based approach generally applied to health-care decisions, including the application and admission to long-term care homes.
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. Thus, Bill 7 authorizes officials to coerce ALC patients with the threat of financial penalties and the deprivation of rights they would otherwise have, and further to apply for and accept admission to a long-term care home that these ALC patients or their SDMs do not, for good reason, believe is capable of properly providing for their treatment, care, safety and well-being.
Appears to be depriving the ALC patients of their right to choose where they will likely spend their final days, what health care they will receive and who may be privy to their personal health information. Bill 7 will do little, if anything, to resolve the health-care system problems it ostensibly has been established to address and may only serve to exacerbate them.
This is the first of a two-part series. Part 2 will discuss a Charter challenge to Bill 7 and alternatives to the bill.
This article was originally published by Law360 Canada part of LexisNexisCanada Inc.