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.
McGill Journal of Law and Health 