Troubling Aspects of Bill 7, More Beds, Better Care Act, 2022
The Ontario government recently introduced the More Beds, Better Care Act, 2022, (known as Bill 7) which passed first reading in the House on August 18, 2022. In the lead-up to this bill in April 2022, the government announced that it was “on track” to build 30,000 new long-term care beds by 2028. However, Bill 7 will come into effect much sooner than 2028, if passed.
The bill applies to “alternate level of care” (“ALC”) patients, meaning those patients who do not require acute, complex care in a public hospital setting.
Its effect will be to authorize hospital staff physicians and placement coordinators to move patients determined to be “alternate level of care” to long-term care homes chosen by the staff, according to geographic parameters pursuant to the bill’s regulations.
The bill proposes to accomplish this by expressly overriding a patient’s consent or the consent of a substitute decision-maker. While it states that “reasonable efforts” must first be made to obtain such consent, the bill does not delineate what constitutes “reasonable efforts”. The extent of what is “reasonable” will likely be determined by the courts in the coming years.
In addition, the bill also authorizes a patient’s personal health information to be used and disclosed without the patient’s or their substitute decision-maker’s consent, so long as doing so is in furtherance of its stated objective.
The bill prohibits the use of restraints to conduct an assessment of the patient’s eligibility for admission to a long-term care home, or to physically transfer a patient to a long-term care home.
Lawyers often receive calls from family members when a patient is determined to be “ALC” and the hospital makes great efforts to discharge the patient. Some families have made truly shocking allegations, including alleged threats by hospital staff to send patients to a homeless shelter. This reveals the pressure that hospital staff are under to vacate beds.
Understandably, families do not want a loved one to remain in hospital indefinitely. However, they encounter a bottleneck situation whereas there is no appropriate long-term care placement available, while the patient’s home is often either unsuitable, or the patient lacks funds for the necessary in-home personal care assistance.
According to the Ontario Long Term Care Association, approximately 300 of Ontario’s long-term care homes required redevelopment (being 30,000 beds) in 2020; the call for applications from developers is still ongoing in 2022. The practical concern is that many patients deemed to be “alternate level of care” will end up in sub-standard beds and will suffer life-threatening consequences.
The legal issues Bill 7 raises are significant and very concerning. This bill overrides decades of jurisprudence on consent in the health care setting, as well as legislation dealing with consent for long-term care admission. It also tramples on privacy rights.
Informed and voluntary consent is central to patient autonomy in Ontario. The Supreme Court of Canada has stated in several cases, and most recently in Cuthbertson v Rasouli, 2013 SCC 53, that informed consent is fundamentally “rooted in the concepts of an individual’s right to bodily integrity and respect for patient autonomy.” When a patient lacks capacity to consent, the focus then shifts from patient autonomy to the patient’s best interests as decided by their substitute decision-maker pursuant to the Health Care Consent Act.
This issue of consent will undoubtedly be litigated. It remains to be seen whether the government’s priorities will trump patient autonomy or a substitute decision-maker’s view of what is best for a patient.
Please contact us should you have any questions regarding this issue.