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 violation of patients’ human rights.
Under legislation introduced last weekhospital patients who are deemed to no longer need urgent care but still need an ‘alternative level of care’ can be admitted to a long-term care home chosen without their input – potentially away from members of family and loved ones who play a critical role in their daily care.
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Long-Term Care Minister Paul Calandra initially said no patient would be forced into a home they didn’t want to live in, but has since said those who refuse placement they have to pay sick leave for their permanent stay.
Doctors, lawyers and advocates say the government’s plan will 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 will the legislation actually do if passed?
When a treating physician believes that a patient no longer needs hospital care and may have an “alternative level of care,” they will be able to ask a long-term care placement coordinator to begin the process of admission to a long-term care home.
The placement co-ordinator must make “reasonable efforts” to obtain consent from the patient or their substitute decision-maker – which could be a spouse, child or other carer – before:
- Determining patient eligibility for long-term care.
- Choosing an LTC home.
- Sharing of Personal Medical Information with Home Licensee.
- Allowing the licensee to approve the admission and admit the patient when they arrive.
The Ontario government’s plan will make it easier for hospitals to discharge eligible patients to long-term care homes. A man is seen here outside a long-term care home in Toronto on April 9, 2020. (Evan Mitsui/CBC)
The legislation does not specify what these “reasonable efforts” should include and makes clear that these steps can be taken without consent.
However, consent is required to physically move the patient to a long-term care home.
What happens if someone refuses to consent?
Although the law says a patient cannot be physically moved without consent, they may feel they have little choice given the potential consequences of refusal.
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 Meads, an attorney and attorney at the Advocacy Center for the Elderly, has seen clients who have been threatened with hospital bills of up to $1,800 a day for continuing care.
Jane Meads, an attorney and attorney at the Advocacy Center for the Elderly, says she has seen patients who refused to go to a long-term care home threatened with huge hospital bills, among other penalties. (David Common/CBC)
Meads says he believes the government’s plan will force older people and other vulnerable people to consent. “If people come and threaten you with things, people get scared and they’ll move.”
Trudeau 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, which require consent to be voluntary.
“Even if the government can pretend it’s giving people a choice, it’s clearly a structural coercion,” he said.
How does the LTC process usually work?
Usually, when the patient or caregiver considers applying for LTCthey can select up to five homes to be waitlisted for.
Key factors in making this decision may include proximity to family as well as cultural or community ties.
“I often take care of 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 McMaster University in Hamilton.
“If you walk into a place where people serve food that you connect with, staff speak a language you understand, celebrate religious and cultural holidays that are important to you, of course you’ll do much better during that time- home for urgent care. And I strongly think it’s worth the wait.”
Others will consider who owns a long-term home, including whether it is public, non-profit or privately owned, the level of care it provides and other amenities offered.
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Palliative care physician Dr. Amit Arya says patients’ health will suffer more if they are transferred from a hospital to a long-term care facility where they don’t receive the right quality of care.
To which homes will the patients be sent?
The government says it will create “mandatory guidelines … to ensure patients continue to stay close to a partner, spouse, loved ones or friends”. But no details have been released yet.
Arya reiterated that it is important for patients to stay close to their family members, who often perform daily tasks in LTCs, such as feeding, bathing and administering medications.
“Not having your support network nearby can worsen your health outcomes and even lead to premature death in and of itself,” he said.
Given the long wait times for many long-term patients, advocates fear that patients will eventually be discharged to homes with only available beds because their living conditions are less than desirable.
“What people aren’t looking to get into is mostly older for-profit housing; many of them had some of the worst reputations during our pandemic.… How do you force someone into that bed that they don’t want to get into? create legislation like this,” said Dr. Sameer Sinha, director of geriatrics at Sinai Health System in Toronto.
Ontario Long-Term Care Minister Paul Calandra says hospitals “should” charge patients who refuse to go to a long-term care home that isn’t among their preferences. (Chris Young/The Canadian Press)
Calandra said patients would be transferred temporarily “while they wait for an available bed in their preferred home,” although there is no guarantee of that written into the legislation. And experts say that brings additional dangers.
“Temporary, at this stage of life, actually becomes dangerous. Because what happens, especially with cognitive decline, is that any movement comes with an increased risk of death,” said Tamara Daly, director of York University’s Center for Research and Education.
Will this worsen the long-term crisis?
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 long-term care homes in the province, said in a statement that long-term care homes urgently need more staff, especially registered nurses and personal support workers.
Advocates want the government to expand access and resources for home care and community services, which would allow more patients to stay in their own home or with loved ones, while easing pressure on the sector.
When will it take effect?
The exact date is not clear, but the government – which has 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 long-term care beds will be moved over the next three months, with a total of 1,300 moved by March 2023 .
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