Advocates are gearing up for legal battles against Ontario's plan to move elderly and chronically ill patients out of hospitals and into long-term care homes, with lawyers warning the proposed change is a breach of patients' human rights.
Under legislation unveiled last week, hospital patients who are deemed to no longer require acute care, but still need an "alternate level of care," could be admitted to an LTC home chosen without their input — potentially far away from family members and loved ones who play a critical role in their day-to-day care.
Long-Term Care Minister Paul Calandra initially said no patients would be forced to go to a home they didn't want to live in, but has since said that those who refuse a placement should have to pay hospital charges for their ongoing stay.
Doctors, lawyers and advocates say the government's plan would force patients to make an impossible choice: live somewhere they don't want to, or suffer the consequences.
Here's a closer look at what can — and can't — happen under the Ontario government's Bill 7, the More Beds, Better Care Act.
What would the legislation, if passed, actually do?
When an attending clinician believes a patient no longer needs hospital care, and could have an "alternative level of care," they would be able to ask a long-term care placement co-ordinator to begin the admission process to an LTC home.
The placement co-ordinator needs to make "reasonable efforts" to get consent from a patient or their substitute decision-maker — which might be a spouse, child or another caregiver — before:
Determining the patient's eligibility for long-term care.
Selecting an LTC home.
Sharing private medical information with the home's licensee.
Enabling the licensee to approve the admission and admit the patient when they arrive.
The legislation doesn't specify what those "reasonable efforts" should entail, and makes clear those steps can be taken without consent.
However, consent is required to physically transfer the patient to a long-term care home.
What happens if someone refuses to give consent?
Although the legislation says a patient can't be physically transferred without consenting, they may feel they have little choice, given the potential consequences of refusing.
Advocates and doctors say some hospitals already have policies where patients who refuse to go to a long-term care home are instead discharged to a shelter or to a family member, who may have little capacity to care for them.
Jane Meadus, a lawyer and advocate with the Advocacy Centre for the Elderly, has seen clients who were threatened with hospital bills of up to $1,800 a day for continued care.
Meadus says she believes the government's plan will coerce seniors and other vulnerable people into giving their consent. "If people are coming in and threatening you with things, people get fearful and they're going to move."
Trudo Lemmens, a professor of health law and policy at the University of Toronto, says the legislation appears to violate patients' human rights, as well as informed consent requirements, under which consent must be voluntary.
"Even if the government may pretend this is giving people a choice, it's clear that this is structural coercion," he said.
How does the LTC process normally work?
Normally, when a patient or their caregiver are considering applying to an LTC, they can choose up to five homes to be waitlisted for.
Key factors in that decision-making can include proximity to family, as well as cultural or community links.
"I'm often caring for people who are racialized, people who maybe don't speak English as a first language," said Dr. Amit Arya, a palliative care physician and assistant clinical professor at Hamilton's McMaster University.
"If you enter a facility where people are serving the food that you relate to, the staff speak the language that you understand, they celebrate the religious and cultural holidays which are important to you, of course you will do much better in that long-term care home. And I strongly feel that it's worth the wait."
Others will consider who owns a LTC home, including whether it's public, non-profit or privately owned, the level of care it provides and other amenities offered.
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Which homes will patients be sent to?
The government says it will create "mandatory guidelines … to ensure patients continue to stay close to a partner, spouse, loved ones or friends." But it has yet to release any details.
Arya reiterated it's important that patients remain near family members, who often carry out day-to-day tasks in LTCs, like feeding, bathing and administering medications.
"Not having your support network nearby can worsen your health outcomes and even lead to premature death in itself," he said.
Given lengthy wait times for many LTCs, advocates fear patients will end up being discharged to homes that only have beds available because their living conditions are less than desirable.
"What people are not clamouring to get into are mostly older, for-profit homes; many that had some of the worst reputations during our pandemic.… How do you force someone into this bed that they don't want to go into? You create legislation like this," said Dr. Samir Sinha, director of geriatrics at Toronto's Sinai Health System.
Calandra has said patients would be transferred temporarily, "while they wait for a bed available at their preferred home," although there's no guarantee of that written into the legislation.
Following the publication of this story, the Ministry of Long-Term Care on Friday night told CBC News that patients who were temporarily transferred would be "given a crisis priority designation on the waitlists for their preferred homes," contradicting Calandra's previous comment that the plan would not make "any changes to the priority waiting list." It was not clear why the policy had changed.
Experts say they are concerned that shuffling patients between homes could be detrimental to their health.
"Temporary, at this stage of life, actually becomes dangerous. Because what happens, especially with cognitive decline, is that any moves come with the increased risk of death," said Tamara Daly, director of York University's Centre for Aging Research and Education.
Will this make the LTC crisis worse?
The government did not respond to questions about what additional funding or other resources would accompany its plan.
The Ontario Long-Term Care Association (OLTCA), which represents most of the province's LTC homes, said in a statement that LTC homes urgently need more staff, especially registered nurses and personal support workers.
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Advocates want to see the government expand access and resources for home-care and community-based services, which would enable more patients to stay in their own home or with loved ones, while also alleviating pressure on the sector.
When will it come into effect?
The exact date isn't clear, but the government — which holds a majority — is currently rushing the bill through the Ontario Legislature.
The Ministry of Health and Long-Term Care confirmed to CBC Toronto that 200 people who have been in hospital for six months, waiting for LTC beds, will be moved within the next three months, with a total of 1,300 moved by March 2023.