Month: January 2023

Legal Barriers to Access: Canada’s Trans Health Care Crisis

Contributed by Stephanie Kay

Introduction

In June 2017, Bill C-16 amended the Canadian Human Rights Act’s list of federally protected grounds to include “gender identity” and “gender expression.” At the time of Bill C-16’s enactment, virtually every provincial and territorial jurisdiction in Canada already provided explicit human rights protections for transgender people. Bill C-16 aimed to “protect individuals from discrimination within the sphere of federal jurisdiction” due to their gender identity or expression, including within health care settings. However, over five years later, transgender and non-binary people in Canadian jurisdictions continue to experience a multitude of complex and discriminatory legal barriers. 

According to a recent research report published by the Department of Justice Canada, identity documents (ID) that do not correspond with a person’s identity can significantly affect their overall health and well-being. Providing transgender and non-binary people with access to accurate IDs is an essential step in protecting them from discrimination and treating them with dignity and respect. This article explores the need for legislation in Canada to go beyond the legal recognition of transgender and non-binary people through accurate IDs (e.g., passports, health cards). These laws should also advocate for comprehensive and accessible gender-affirming health care for these communities.

Québec’s Bill 2 & Legal Recognition through Identity Documents

Initially introduced in October 2021, Québec’s Bill 2 was met with backlash from many transgender advocates. Others highlighted a lack of consultation with members of the 2SLGBTQIA+ community who this piece of legislation would directly impact. The amended version of Bill 2, adopted in June 2022, addressed these criticisms by removing the requirement for proof of gender-affirming surgery to modify one’s gender marker on official identity documents. Bill 2 also allows people to select the non-binary gender marker X, instead of F or M. 

It is well-established that having access to IDs that match an individual’s gender identity can seriously impact their overall quality of life. Given this, all provinces and territories have committed to allowing transgender and non-binary people to change their gender markers. In Ontario, non-binary gender markers have been available for provincial documents, such as birth certificates and driver’s licenses, since 2017. Federal documents in Canada have allowed citizens who do not identify as either female or male to list their gender as  “X” since 2019. However, the reality is that each jurisdiction across Canada has “different onerous, elaborate application requirements and processes,” for changing gender markers and names. Navigating these time-consuming and resource-intensive processes can pose a significant barrier to transgender and non-binary people. 

Additionally, when an individual’s IDs do not reflect their name or gender identity, it is more than a mere inconvenience. IDs are a structural determinant of health because they impact a person’s ability to access adequate health care and other social services (e.g., banking). In fact, accurate IDs promote positive mental health amongst transgender and non-binary people. While legislation like Bill 2 has laid the groundwork for improved legal recognition of transgender and non-binary people in Québec through IDs, more progressive legislation is still needed to address the systemic barriers these communities face in accessing health care. 

What is Gender-Affirming Health Care?

Transgender and non-binary people experience inequities when accessing all forms of health care in Canada. Many gender non-conforming folks report mistreatment, neglect, and abuse by health care professionals, which can prevent or dissuade them from seeking essential health care services in the future. Gender-affirming health care is crucial for members of the transgender community as it “holistically attends to transgender people’s physical, mental, and social health needs and well-being while respectfully affirming their gender identity.” Gender-affirming health care goes beyond just transition-related care and focuses on providing transgender and non-binary people with an affirming experience in all health care encounters.

Similar to how processes differ for IDs across jurisdictions, the ability of Canadians to access gender-affirming health care depends greatly on their province or territory and whether they live in urban or rural areas. The coverage and funding for gender-affirming health care, such as surgery and medications, vary significantly across Canada. The disparity between jurisdictions in terms of the quality and availability of gender-affirming care further perpetuates the barrierstransgender and non-binary Canadians face within the health care system. These barriers would decrease if provinces and territories committed to improving overall access and coverage of medically necessary gender-affirming health care. Except for Yukon, most jurisdictions in Canada place an “undue burden” on transgender and non-binary populations who often require gender-affirming health care.

Yukon Case Study: The Need for Comprehensive Coverage across Canada

In March 2021, the Yukon government announced changes that would significantly improve access to gender-affirming health care. Yukon’s newly expanded health care insurance coverage was heralded as the “gold standard” for members of the transgender and gender-diverse communities. This comprehensive coverage aligns with the World Professional Association for Transgender Health’s internationally recognized standards of care for effectively supporting individuals undergoing gender-affirming health care. The policy announcement highlights that gender-affirming procedures such as voice therapy and facial feminization surgery are “not cosmetic and are life-saving for transgender people.” Yukon’s announcement also acknowledges the delay or denial of “transition-related health care can cause significant harm.” 

In Canada, Yukon’s gender-affirming care policy is the most comprehensive of its kind. However, transgender and non-binary Canadians as well as advocates are calling on the federal government to implement better gender-affirming health care coverage across the country. In recent years, the evidence regarding the importance of gender-affirming care for transgender and non-binary people has grown exponentially. The data supports the connection between gender-affirming health care and improvements in mental health outcomes and overall well-being. However, it is not enough for just one of Canada’s thirteen provinces and territories to adopt a progressive gender-affirming health care policy. In order to ensure equitable health care access for all transgender and non-binary Canadians, other provinces and territories should follow Yukon’s lead.

Conclusion

In 2017, Canada’s Bill C-16 intended to provide equal protection under the law to transgender and non-binary people. Five years later, Québec’s Bill 2 introduced ‘X’ gender markers. While both are steps toward the inclusion of transgender and non-binary people, legislative work is still required to support these communities in Canada effectively. Transgender and gender-diverse people in Canada continue to experience substantial barriers to accessing gender-affirming health care. 

From difficulty changing gender markers on health cards to inadequate public health coverage for gender-affirming care, these marginalized communities often have few viable administrative and legal remedies to tackle barriers within the Canadian health care system. Canadian policymakers and legislators should go beyond creating laws and policies that legally recognize the existence of transgender and non-binary people. Instead, policymakers and legislators should work to reduce the significant burden placed on transgender and non-binary people by the health care system they rely on to access various forms of gender-affirming health care.Word Count: 1138 words

Stephanie Kay is the Senior Online Editor of the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, Stephanie completed a Bachelor of Health Sciences (Honours) at McMaster University and worked in communications.

More Beds, Better Care Act 2022: Ontario’s Recent Passing of Bill 7

Conrtibuted by Peter Soliman

Ontario’s Healthcare Crisis

With record-setting hospital wait times and emergency departments closing their doors for hours at a time due to staffing shortages, Ontario’s healthcare system has been experiencing severe strain. Without a doubt, COVID-19 has exacerbated this strain, as the healthcare system struggles with a shortage of family doctors, a lack of walk-in clinics and an unprecedented number of nurses leaving the profession. Ontario Health statisticsshow that, on average, patients spent 20 hours in the Emergency Department before getting a bed in a ward. Emergency Department overcrowding and wait times are linked to many overlapping factors, one of them being patient discharge backlogs caused by a shortage of hospital beds and home-care support. The lack of beds available for acute care patients produces a cascade of adverse effects on hospital systems’ overall efficiency and functionality. In an effort to address this issue, the Ontario government introduced amendments to the existing Fixing Long-Term Care Act (‘FLTCA’) by implementing Bill 7 – the More Beds, Better Care Act 2022. But what were some of the factors that drove the government to make this amendment? 

Long-Term Care Homes & Alternate Level of Care

Every year, Ontario’s long-term care (LTC) homes provide 24/7 nursing care and support to more than 115,000 people and their families. Licensed and funded by the Ministry of Health and Long-Term Care, LTC homesstrive to provide a safe environment and compassion-oriented assistance for people who may have difficulty directing their care. 

Patients occupying a hospital bed but not requiring the intensity of resources or services provided in that care setting are designated as requiring an Alternate Level of Care (ALC) by an attending clinician. An ALC designation can be given once the patient’s care goals have been met, progress has reached a plateau, the patient has reached their potential in that level of care, or an admission occurs for supportive care because the services are not accessible in the community. The patient can be discharged or transferred to various locations depending on the need, one of those locations being a long-term care home.  This ALC designation does not apply to patients waiting at home, in an acute care bed/service waiting for another acute care bed/service, or waiting in a tertiary acute care hospital bed for transfer to a non-tertiary acute care hospital bed (repatriation to community hospital).

The overcrowding of hospitals by ALC patients continues to be a critical challenge for Ontario hospitals.Looking at Ontario’s health data, as of August 17th, 2022, there were approximately 5930 ALC patients inhospitals. As of May 2021, there were about 38,000 people on the waitlist to access a LTC bed in Ontario, with the median wait time being 171 days for applicants. These wait times exacerbate the effect of emergency department overcrowding and bed shortages, decreasing available resources for patients in need of critical care. 

A shortage of community-based care has evidently made hospitals the default place for many elderly patients in Canada. In fact, many LTC patients are not actually waiting for long-term care. Instead, they are waiting for another type of care, such as rehabilitation or complex continuing care, for which all hospital beds are full.  Other LTC patients in understaffed hospitals may not need medical assistance anymore, but remain as spaces in LTC homes are scarce, or their preferred LTC home is unavailable. Additionally, the COVID-19 pandemic highlighted some of the substandard care provided in certain LTC homes, furthering their undesirability by much of the elderly population. 

Ontario’s Plan to Stay Open

In March 2022, Ontario released its “Plan to Stay Open: Stability and Recovery” framework to build a stronger, more resilient health system by tackling healthcare’s most pressing issues. The plan includes five areas of focus:

·        Preserving hospital capacity 

·        Providing the right care in the right place 

·        Further reducing surgical waitlists

·        Easing pressure on our emergency departments 

·        Further expanding Ontario’s health workforce 

Under the second area of focus, part of the plan (Supporting Transitions to Long-Term Care and Preventing Hospitalization) is to better connect seniors to the most appropriate care settings by providing faster access to care and reducing the number of emergency department visits. In hopes of achieving this goal by 2028, the Ontario government aims to build 30,000 new LTC beds outside of hospitals. Other promises include the investment of $5 billion over four years to hire more than 27,000 LTC staff, including nurses and personal support workers. In addition to creating more bed space, improving LTC resources and increasing the workforce, newly implemented legislation aims to address the overpopulated hospital beds by placing certain ALC patients in long-term homes, as will be discussed in the subsequent section. This new policy is said to provide patients with the care they need and a better quality of life in a more appropriate setting. By transferring ALC patients to LTC homes, the government anticipates hundreds of hospital beds to be available once again for those in need of acute care, and better support future patient outflow.  

Existing Legislation: Pre-Bill 7

Prior to recent changes, the Fixing Long-Term Health Act, 2021(FLTCA) set out the legal framework supporting a patient’s transition from a hospital to long-term care. Briefly, the FLTCA outlined that ALC patients can apply to a placement coordinator for admission to the homes of their choosing. ALC patients (with some exceptions) are asked to choose and rank up to 5 LTC homes. Once a bed becomes available in a home of their choice, the patient is discharged and is to be admitted into that home. The Act prescribes several elements that constitute patient consent (section 52); it [consent] must be related to admission, be informed, voluntary, and not obtained through misrepresentations or fraud. Before Bill 7, a recently passed legislation in Ontario, a patient refusing a valid admission into a LTC home could be charged an uninsured fee to remain in the hospital. However, the FLTCA did not permit unconsented admission into LTC homes by any means.

Recent Legislation: Scope of Bill 7 

Titled the “More Beds, Better Care Act,” Bill 7’s provisions came into effect on September 21st, 2022. The Bill is part of the larger plan outlined earlier to ease pressures on the healthcare system and emergency departments by freeing up hospital beds. Fundamentally, the Bill amends the FLTCA, with respect to patients requiring an alternate level of care. A new provision is added for patients occupying a public hospital bed who are designated as ALC, authorizing certain actions to be carried out without the consent of these patients. The amendments allow a placement coordinator (assigned by the attending clinician) to perform the following action authorized by the attending clinician:

·        Determine the patient’s eligibility for a LTC home

·        Select a LTC home in accordance with the geographic restrictions that are prescribed by regulations 

·        Provide the licensee of an LTC home with the assessments conducted by the attending clinician to determine ALC eligibility, and a patient’s personal health information

·        Authorize the ALC patient’s admission to a home

Implications: Consent, Vulnerability & Costs

It is noteworthy that the placement coordinator cannot perform the actions outlined above without first making a reasonable effort to obtain consent from the patient. Likewise, the amendment brought forth by Bill 7 does not authorize the use of restraints in order to carry out the actions or the physical transfer of an ALC patient to a LTC home without their consent. Despite this, the amendment does allow the placement coordinator to make decisions and take actions without the ALC’s consent, only if a “reasonable effort to obtain consent” has been made. With no clarifications in the Bill regarding what a “reasonable effort” entails, regulations may be the only safeguard against forced removal from the hospital.

An ALC patient is given two options once the placement coordinator authorizes their admission into a LTC home and the attending clinician discharges the patient: move into that LTC home, or face a daily charge of $400 as of November 20th, 2022. Geographically, the assigned LTC home could be as far as 70km from the patient’s home community in southern Ontario, and 150km in northern Ontario. This presents a genuine concern for patients and families who wish to remain in close proximity to each other.

Although Bill 7 was welcomed by some Ontario hospitals as aims to reduce overflow, many critics argued that moving the elderly into LTC homes away from families could significantly impact their mental and physicalhealth. While the effect of the law remains unclear, ALC patients and families are expected to bear the burden of its implementation.

Responses: Healthcare Advocates, Medical Associations and Families

In support of the government’s new plan, Anthony Dale, the president of the Ontario Health Association (OHA), says: “Ontario’s hospitals are rapidly becoming the health-care provider of last resort for thousands of people who actually need access to home care, long-term care and other services. This is not appropriate for thesepatients.” 

The Ontario Medical Association president, Dr. Rose Zacharias, shared similar sentiments:

“We, as Ontario’s physicians, understand and appreciate that in times of health care system crisis, difficult decisions are required and will be made.”

She adds, however: “We hope that these regulations would be implemented with flexibility, with compassion, with an understanding that patients do better when they are surrounded by their loved ones and caregivers…These are difficult decisions. And we will always advocate for the very best well-being of our patients, as decisions like this are being made. “

Many hospitals across the Greater Toronto Area support the legislation as an “important tool to ensure patients are receiving the right care, in the right place.” Some claim that they have yet to use and will unlikely use the powers conferred by the Bill.

A significant criticism relates to the government’s decision to bypass public hearings in order to pass the Bill quickly. In doing so, the general public, healthcare advocates and those primarily affected could not voice their concerns about the detrimental effects of this Bill.

Healthcare advocates also describe the Bill as fundamentally discriminatory against the elderly. In fact, the Ontario Health Coalition and the Advocacy Center for the Elderly are in the process of preparing a potentialConstitutional challenge against the Bill. With the challenge almost underway, it will be interesting to see the strategy behind arguing the Bill’s violation of Sections 7 and 15 of the Charter of Rights and Freedoms.

Peter Soliman is a Junior Online Editor of the McGill Journal of Law and Health with a keen interest in access to medical care and mental health. He is currently in his first year of the BCL/JD program at McGill University’s Faculty of Law. Prior to starting law school, he completed a Bachelor of Health Sciences with a Children’s Health Specialization at McMaster University.