The Ontario Health Coalition and the Advocacy Centre for the Elderly has taken its fight against Ontario’s controversial Bill 7 to court.
Under the new legislation, hospital patients in Alternate Level of Care - ALC - awaiting placement in their preferred long term care home can be moved to a LTC home not of their choosing.
“It’s just so egregious in terms of what it does to families,” said Al Dupuis, Blind River-based Ontario Health Coalition spokesperson for the Algoma District.
There are 38,000 people on the wait list for long-term care in Ontario, according to the OHC.
“The chances are there may not be a home in the Sault, in Sudbury or Timmins that has a space so you could be shipped off anywhere in the province, from what we’re told by the legal experts,” Dupuis told SooToday on Wednesday.
“At this time, no patients designated as requiring an Alternate Level of Care have been moved under Bill 7 from Sault Area Hospital. As of November 21, 2022, SAH has 56 patients designated as requiring an Alternate Level of Care, 13 of those await Long-Term Care,” wrote Brandy Sharp Young, SAH spokesperson in an email to SooToday on Tuesday.
The Ontario Health Coalition (OHC) and the Advocacy Centre for the Elderly co-applied on Monday to the Ontario Superior Court of Justice in what is known as a Charter Challenge, seeking a court ruling to strike down Bill 7 as a violation of the fundamental rights of patients under the Charter of Rights and Freedoms.
Bill 7 - also known as the More Beds, Better Care Act - was passed by the Ford government and came into effect in September.
The government says the new law is necessary in order to free up bed space for hospital patients needing acute care.
As a result, patients in southern Ontario could be moved to a LTC home up to 70 kilometres away from their families, while those in the Sault and northern Ontario may be moved up to 150 kilometres away.
As of Nov. 20, if an elderly ALC patient refuses to go, the hospital is required to charge that patient $400 per day.
The OHC says Bill 7 enables hospitals and discharge planners to:
- assess the patient without their consent
- share their personal health information with long-term care or other companies without their consent
- fill in their applications without their consent
- admit them into long-term care homes or other services without their consent.
“Bill 7 represents an unprecedented and egregious deprivation of the Charter rights of many elderly and vulnerable hospital patients in respect of both their right to life, liberty and security of the person and to equality,” wrote Steven Shrybman, lawyer at Golblatt Partners LLP, acting as counsel for the Ontario Health Coalition and the Advocacy Centre for the Elderly in the Charter Challenge.
Shrybman wrote that Bill 7’s aim is to coerce “certain hospital patients who can no longer be cared for at home into being placed in a long-term care home that may have a terrible record and be far from their family and community.”
“It is a direct affront to the fundamental right to give informed consent to medical treatment,” Shrybman wrote.
Sault MPP Ross Romano, in a September interview with SooToday, said “there is no one being moved against their will.”
“We’re going to work to ensure we’re keeping families together. We’re going to ensure that this is done in a very respectful way. No one is going to move a patient into an area where they don’t have the support that they’re going to need.”
Romano acknowledged that ALC patients may be asked if they want to take a long term care bed not of their choosing, but said such a move would be temporary and that those patients wouldn’t have to wait for long to have a bed in a place where they would prefer to be due to new government spending on more LTC beds.
But the OHC doesn’t buy that.
“Some people might think we’re in a crisis caused by COVID and this is a special circumstance, or this solution would only be temporary and then the patient would be moved into a home that’s closer. All of those things are bogus,” Dupuis said.
Ila Watson, SAH president and CEO, speaking at a September hospital board meeting said that SAH - like other Ontario hospitals - will abide by Bill 7.
“We recognize that difficult decisions must be made, however we are committed to ensuring that this legislation is implemented in a compassionate and respectful way that aligns with our hospital values,” Watson said.
The OHC is shooting back over official statements that Bill 7 will be carried out compassionately.
“I don’t know how you do something like that - tear a family apart - with compassion and respect,” Dupuis said.
“If that's a reflection of the values of the administrators running our hospitals, then I think we’ve got a problem with that too, not just with government officials but perhaps officials who are worried about their positions and not wanting to take a stand against this.”
“How do you override someone’s consent and assess them without their consent compassionately?” said Natalie Mehra, OHC executive director, speaking to SooToday from Toronto on Tuesday.
“How do you threaten them with $400 a day penalties if they don’t go to a long-term care home not of their choosing to die? How is that in any way compatible with a notion of compassion?”
“The Bill targets one group of people - the frail elderly - who are waiting for care in long-term care, to strip them of their fundamental rights, their rights to privacy of their health information, their right not to be assessed against their will, their right to choose where they live for the last months and years of their lives,” Mehra said.
“Fundamentally that’s wrong but on an emotional level, we know what this is going to mean. We just saw, in the pandemic, people die in long-term care, isolated from their families. They starved. The care that families provide in long-term care is vital. It’s not an exaggeration to say some people died of dehydration and starvation because their families couldn't come in and feed them. They died of depression and loneliness.”
Bill 7 will bring that same serious, often fatal separation from family members, Mehra said.
“This Bill is going to do that again. It’s unacceptable on every level.”
Neither does the Act provide more beds or better care, Dupuis said.
He said the solution for health care is more beds and more, better paid nurses in hospitals.
“The crisis in hospitals is not being caused by ALC patients but nonetheless the elderly are being targeted by this legislation and forced by way of exorbitant extra fees to move out of hospitals.”
OHC is hopeful its Charter Challenge will strike down Bill 7 in the Ontario Superior Court of Justice.
“I’d like to think that it stands a pretty good chance because on the face of it, to a lay person, it’s pretty clear that people’s rights are being taken away from them,” Dupuis said.
“We’re going to court because we think there is a clear violation of the Charter here and the court should strike down the law. I’m confident we can succeed in that, otherwise we wouldn’t do it. Clearly it’s a violation of the Charter Of Rights,” Mehra said.
In court, the government is certain to state Bill 7 is necessary to free up hospital beds.
But the OHC says it believes the government’s argument won’t stand because of the extraordinary consequences faced by patients affected by the new law, bad conditions in some of the long-term care homes likely to have room for transferred ALC patients and the small impact Bill 7 would have on the large, systemic woes the health care system is facing.
With ALC patients left with no apparent recourse, the OHC and the Advocacy Centre for the Elderly are fighting for those who will be affected by Bill 7.
“We’re trying to move it forward as quickly as we can because people who are in this situation, being pushed out of hospitals into places all over, there’s no recourse, there’s no appeal in the legislation, there’s nothing they can do, even if it causes horrific suffering for the person and their family,” Mehra said.
“This is the only thing we can do to fight this. We think it can be heard within the year. Constitutional challenges don’t move quickly so we have to push it as quickly as we can.”
While the case is in court, the OHC would like to see the public apply some pressure.
“Appeal to the consciences of the medical staff. People can contact Conservative MPPs and pressure them to withdraw the Bill. They have made a political decision to bring in this Act and they can revoke it,” Mehra said.
Earlier this month, the Ontario government introduced its controversial Bill 28, which imposed a contract on 55,000 CUPE-represented education workers and stopped them from striking, but repealed the legislation in the face of an enormous backlash.
OHC is hopeful Bill 7 will create a similar stir and force the government to repeal it.
Dupuis is urging people affected by Bill 7 and their families to contact the Ontario Health Coalition and share their stories.
“One of the reasons the education workers were successful was that their story got traction. We would like to see people start coming forward with their personal stories, to have people reach out to us,” Dupuis said.
“I know that there’s going to be more campaigning around this issue and hospital privatization. There are campaigns and town halls and I wouldn’t be surprised if there are picket lines, especially if we start learning of people being put in this position,” Dupuis said.