A pair of public health advocacy groups is launching a Charter challenge of a Ford government bill that enables hospitals to charge some patients who refuse to move into a long-term care home $400 a day.
The Advocacy Centre for the Elderly and the Ontario Health Coalition filed a notice of application with the Superior Court this week arguing that the legislation infringes on the right to life, liberty and security of person under Section 7 of the Charter and discrimination based on age under Section 15 of the Charter.
Bill 7 came into force in September and applies to some alternative-level-of-care (ALC) patients in hospitals who are considered ready to be discharged but who have not left because they are waiting for an appropriate place to go. The bill allows hospitals and placement co-ordinators from the Home and Community Care Support Services to authorize their admission to a long-term care home, even if that home is not on their list of approved homes, and share their personal health information with those homes.
If they refuse to move, the hospital is required to charge them $400 per day.
The advocacy groups' notice of application argues that the bill singles out "a particular cohort of older, ill and very vulnerable patients to be deprived of their right to informed consent about where they will live and the health care they receive."
"It authorizes the discharge from hospital of ALC patients, some of whom still require treatment in hospital, for admission to LTC homes that have not been willingly chosen or consented to, and that may not be capable of providing for their treatment, care and safety. It therefore results in needless physical and psychological suffering for, and will hasten the deaths of some ALC patients."
At a news conference Thursday, their lawyer, Steven Shrybman of Goldblatt Partners, accused the government of lying to the public with the title of the bill, the More Beds, Better Care Act.
It provides no more beds in the hospital system and deprives some patients of the care they receive, he said, so the name is "just a boastful declaration, a flashing neon light of a bold lie."
As of March 2, the legislation had been used to send 66 patients to long-term care homes not of their choosing, according to a document tabled in the legislature.
The advocates argue the bill's impact goes beyond those patients because it is being used as a threat to coerce patients into including homes they do not want to move into on their lists of preferred homes. That means they aren't counted among the 66 patients moved into a home not of their choosing, but they're not going where they want, either.
"There are a lot of things they're not being told," said Jane Meadus, a lawyer with the Advocacy Centre for the Elderly. "They're being lied to, and they're being threatened."
Shrybman added that the bill's existence deprives thousands of other patients of their rights, even if it isn't used to move them out of the hospital.
"So they've got a very, very, very heavy-handed draconian solution, looking for a problem," he said. "And it seems, even by their own estimates, they don't have one."
The advocacy groups have collected affidavits from medical experts, some of whom expressed alarm that the bill is scapegoating elderly patients for problems in the health-care system.
"The large majority of ALC patients are older persons, they are persons who are often suffering from dementia and close to the end of their lives," says an affidavit from Dr. Samir Sinha, director of geriatrics at Sinai Health System and the University Health Network in Toronto, a professor of medicine at the University of Toronto, and the Director of Health Policy Research at Toronto Metropolitan University’s National Institute on Ageing.
"They are people who, due to their health conditions, often cannot actually raise their own voice and therefore engage public sympathy. This is why ultimately this is an easy population to target and strip of the rights everyone else is entitled to, because the rights of ALC patients seem to not matter as much, and they are almost seen and treated by our society increasingly as 'useless eaters.'
"I find it deeply disturbing when we start actively treating ALC patients as a problematic group and use formal legislation — rushed through without any hearings — to help ‘manage’ this problem more expeditiously. By increasingly classifying ALC patients as being less worthy than others in our society, we are essentially whittling away their rights little by little by little, so that we can ultimately regard them as being dispensable. I am increasingly finding myself repeatedly asking the question: 'What's a life worth?'"
