Some recent news to share which may be noteworthy for those with loved ones who are currently in hospitals awaiting a bed in a long-term care home.

On August 31, 2022, the Government of Ontario passed Bill 7, the More Beds, Better Care Act, 2022. The Bill has been enacted as Chapter 16 of the Statutes of Ontario, 2022.

The Bill aims to simplify the process in moving patients designated by an attending physician or clinician as requiring an alternative level of care (“ALC”) from hospital care into long-term care homes. The Bill amends the Fixing Long-Term Care Act, 2021, adding a new provision which authorizes certain actions to be carried out without the consent of ALC patients. The Bill also amends the Health Care Consent Act to facilitate the transition of patients who require an alternative level of care. The Bill adds a new section to the Fixing Long-Term Care Act (60.1) and applies to any person who occupies a bed in a hospital under the Public Hospitals Act and has been designated by an attending clinician in the hospital as requiring an alternate level of care because, in the clinician’s opinion, the person does not require the intensity of resources or services provided in the hospital care setting.

A placement co-ordinator may now do the following, with or without a request from an attending clinician:

• Determine the ALC patient’s eligibility for admission to a long-term care home;
• Select a long-term care home or homes for the ALC patient in accordance with the geographic restrictions that are prescribed by the regulations;
• Provide to the licensee of a long-term care home the assessments and information set out in the regulations, which may include personal health information;
• Authorize the ALC’s patient’s admission to a home; and
• Transfer responsibility for the placement of the ALC patient to another placement co-ordinator who, for greater certainty, may carry out the actions listed in this paragraph with respect to the ALC patient.

On September 21, 2022, Ontario Regulation 484/22 came into force. This Regulation amended the general regulation under the Long-Term Care Act (Ontario Regulation 246/22). Pursuant to the new regulations, when determining an ALC patient’s eligibility for admission to a long-term care home, placement co-ordinators must satisfy themselves of the following:

• They must meet with the patient and provide them with pertinent information about the long-term care home placement process and the implications of refusing to provide their consent to a particular placement;
• They must provide the patient with payment information about the long-term care home accommodation in addition to how they can apply for a fee reduction; and
• They must consider the patient’s physical and mental heath, requirements for medical treatment and health care, functional capacity, requirements for personal care, and behaviour. In doing so, a co-ordinator can request that a physician, registered nurse or nurse practitioner at the hospital conduct an assessment of the patient. If the patient or their substitute decision-maker does not consent to the assessment, the person conducting it is then required to base their assessment only on a review of the patient’s existing hospital records. The co-ordinator is also permitted to consult with various care provides to the ALC patient and collect certain personal health information about said patient.

If a placement co-ordinator determines a patient is eligible for admission to a long-term care home, the co-ordinator must also discuss waiting lists and approximate admission times, vacancies, and where to find long-term care home information with the patient or their substitute decision-maker.

If the patient or their substitute decision-maker refuse to submit an application, the placement co-ordinator is authorized to make a selection. In doing so, they must consider:

1. The patient’s condition and circumstances;
2. The class of accommodation requested by the patient (if any); and
3. The proximity of the home: it must be within 70 kilometers from the patient’s preferred location or 150 kilometers if the patient’s preferred location is in northern Ontario (unless there are no homes or vacancies in that area).

Where it concerns the proposed fees for persons who refuse a valid offer of admission and chose to remain in hospital, the Hospital Management Regulation under the Public Hospitals Act has been amended in support of Bill 7. This amendment came into force on November 20, 2022, and provides that if a discharged patient remains in the hospital for more than 24 hours after the date set out in the discharge order, the hospital shall charge the patient a fee of $400 for every day that the patient remains in hospital following the expiry of that 24-hour period.^[1]

According to the Ontario Hospital Association (“OHA”), there were 5,930 ALC patients in Ontario as at August 17, of which 40 per cent were waiting for a space in a long-term care home.^[2]

This Bill is one of the first steps in the Ontario government’s ‘Plan to Stay Open: Health System Stability and Recovery’ which was released by the government in March of 2022. According to the Ontario government, “We are on track to build 30,000 new long-term care beds in the province by 2028, with 31,705 new and 28,648 upgraded beds in development. This is the largest long-term care development program in a generation and these beds have already started to come on-line and will continue to do so over the next decade.”^[3] The plan includes five areas of focus:

1. Preserving Hospital Capacity;
2. Providing the Right Care in the Right Place;
3. Further Reducing Surgical Waitlists;
4. Easing Pressure on Emergency Departments; and
5. Further Expanding Ontario’s Health Workforce.

The More Beds, Better Care Act, 2022 has been met with some opposition.

The Ontario Health Coalition’s executive director, Natalie Mehra, provided that “this is a fundamental question of justice. Elderly patients are not taking undue resources any more than other patients. It is the cruelty of ageism laid bare and the Ontario Human Rights Commission must finally take action.”^[4] At the same time, Anthony Dale, president and CEO of the OHA has previously told CBC Toronto that he is in support of the Act, noting that “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 these patients.”^[5]

On November 21, 2022, the Canadian Press reported that the Ontario Health Coalition had officially launched a constitutional challenge against Bill 7. According to the Canadian Press, the Health Coalition, along with the Advocacy Centre for the Elderly (“ACE”), will be co-applicants for the Charter Challenge, which asks the Ontario Superior Court of Justice to strike down the law as a violation of the Charter of Rights and Freedoms. According to Steven Shrybman of Goldblatt Partners LLP, “Bill 7 represents an unprecedented and egregious deprivation of the Charter rights of many elderly and vulnerable hospital patients in respect of both their right to life, liberty, and security of the person and to equality,”^[6]

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[1] R.R.O. 1990, Reg. 965: HOSPITAL MANAGEMENT.

[2] Canadian Press, “Ontario government passes controversial long-term care bill without public input” August 31, 2022, accessed online: https://www.cbc.ca/news/canada/toronto/bill-7-passes-ontario-long-term-care-1.6568125

[3] Government of Ontario, “Plan to Stay Open: Health System Stability and Recovery” August 18, 2022, accessed online: http://www.ontario.ca/page/plan-stay-open-health-system-stability-and-recovery

[4] Ibid.

[5] Ibid.

[6] Meredith Bond and The Canadian Press, “Ontario health care advocates launch constitutional challenge against controversial Bill 7” November 21, 2022, accessed online: https://toronto.citynews.ca/2022/11/21/bill-7-constitutional-challenge-ontario/