Proposed law could force patients into long-term care without consent

Bill 7, More Beds, Better Care Act, 2022, introduced in Ontario on August 18, 2022, proposes to free up hospital beds that are occupied by individuals who do not require hospital care (referred to as “alternate level of care” or ALC for short). This in itself is a worthy goal as staff shortages are crippling our health care system. However, the Bill proposes to remove ALC patients in a manner that is not consistent with our existing statutory framework, which is currently grounded in an ethical principle of autonomy.

To understand the implications of this Bill, let’s first explore how the long-term care admission process currently works. A person is assessed to determine whether they are eligible for long-term care. If the person is capable of making decisions for themselves they can consent to be added to a long-term care home wait list. If they consent they are allowed to select up to five homes. If a bed becomes available at one of those five homes they have a day to choose whether to accept the bed at that time or decline it. If the person is unable to make their own decisions due to a lack of capacity their substitute decision maker consents or declines on their behalf.

Throughout the process they must choose the homes they are willing to move to, and they are entitled to accept or decline when a bed becomes available. Notably, consent is required throughout the process. Bill 7 proposes to dispose of the need for consent and removes the freedom to select up to five beds of one’s choosing, which has historically been important to ensure individuals can be close to family or in places that have language, religion or culture similar to their own. This Bill would remove not only the right to choose the specific homes but also whether to accept the bed. The long-term care home MUST approve the patient for admission, unless the patient does not meet certain conditions.

In addition to violating the right to decide whether to go to long-term care at all, the Bill also violates privacy rights. It states that personal health information of patients can be shared with long-term care homes without patient consent.

So why is this Bill concerning?

For one, individuals could be moved far from family. As we've seen during the pandemic, taking family caregivers away is extremely detrimental to residents of long-term care. Families are the unpaid workforce that provide services the facilities are unable to perform due to chronic under-staffing and abysmal staff-resident ratios. Family caregivers are able to take the time to spoon-feed loved ones, brush their teeth, and cut nails, among other services. Without family caregivers residents will miss out on mental stimulation, which can result in cognitive decline. Without a family member taking them out for walks or assisting with physiotherapy exercises, residents can lose mobility and end up in wheelchair.

For further clarity, this Bill is not focused on individuals who lack mental capacity to make their own decisions. This Bill applies even to people who are perfectly capable of making their own health care and property decisions.

There is language in the Bill that is presumably supposed to assure us that rights are not being violated. The Bill says these violations “may only be performed without consent if reasonable efforts have been made to obtain the consent of the ALC patient or their substitute decision-maker.” But who decides what constitutes reasonable efforts?  And if consent was needed, this Bill would not be required as we already have a system predicated on consent.

If you look at the Bill you will notice a section that discusses a right to appeal, which at first glance looks promising but is in fact a red herring. The right to appeal is for a person who is found ineligible and wants to go to long-term care but is not permitted to do so. There is no right to appeal if a person is being forced to go to long-term care, or a specific home, against their wishes.

You may wonder, isn't there a Residents’ Bill of Rights that protects residents of long-term care? There is, but this Bill says that it should not be interpreted or considered as being inconsistent with the Residents' Bill of Rights, which could limit judges’ ability to take issue with this legislation.

You may also wonder, the Health Care Consent Act says a person can only be admitted to a long-term care facility without consent if the person requires immediate admission as a result of a crisis and it is not possible to get consent from their substitute decision-maker. Doesn’t that still operate? It would not; this Bill proposes to change that language too. Notably, under the existing laws if a person is found incapable of making a decision for themselves about long-term care they have a right to appeal and if successful, they can have their decision-making authority restored.

Going back to the original goal (which is laudable) we ought to consider alternatives such as:

·        allowing all individuals to select more than five homes

·        speeding up the long-term care authorization process

·        expanding long-term care eligibility so more ALC patients could be moved to long-term care, with consent

·        investing in home care so that individuals can return to their homes (which often are not a safe or viable option)

·        focusing efforts on recruiting more hospital staff to serve the ALC patients, such as internationally trained professionals

The health care system is in crisis and difficult legislative and policy decisions must be made, but eroding consent – the foundation of our health care laws – should not be the answer.

UPDATE: THE BILL WAS PASSED.