Health Coalition Vows to Continue the Fight to Protect the Rights of the Elderly
In a press conference on March 13th, the Ontario Health Coalition responded to court rulings in two cases impacting thousands of elderly hospital patients and long-term care residents in Ontario.
The first case, known as the Bill 7 Charter Challenge, was brought by the Ontario Health Coalition and the Advocacy Centre for the Elderly. The court upheld the constitutionality of the Act (known as Bill 7), euphemistically titled the More Beds, Better Care Act (2022) (ALC), which requires hospitals to charge elderly patients who are classified by the hospital as “Alternate Level of Care” $400 per day or $12,000 per month if they refuse to go to a long-term care home that is not of their choosing. Patients can be sent up to 70 km away in Southern Ontario, and up to 150 km or even further in Northern Ontario. The court case was a Charter Challenge, known as a Constitutional Challenge or a Challenge under the Charter of Rights. The case was argued before the Ontario Superior Court on Monday, September 23, and Tuesday, September 24. A backgrounder and links to the court filings, evidence, and the court ruling are available here.
In the second case, the Ontario Health Coalition and Cathy Parkes, the daughter of a deceased resident, sought a judicial review of the Ford government’s decision to grant an 88-bed expansion and new 30-year licence for the 233-bed long-term care home owned by Southbridge at Orchard Villa in Pickering. Southbridge has a terrible record of poor care and deaths. The court dismissed the case. The Coalition and the families asked the court to quash the license and require the Ford government live up to their own long-term care legislation. Under the Fixing Long-Term Care Act (2021), the government cannot issue licenses to long-term care home owners when their past conduct offers reasonable grounds to believe that the home will be operated in a manner that is prejudicial to the health, safety, and welfare of its residents. The case was argued before a panel of judges at the Ontario Divisional Court on Thursday, October 17. A backgrounder and links to the court filings, evidence, and the court ruling are here.
Bill 7 Charter Challenge
The Health Coalition announced that it will not be appealing the Bill 7 charter challenge.
“We are shocked and disappointed by the court ruling and we are very sorry not to be able to appeal. These cases are enormously costly and take a lot of resources to gather expert evidence,” said Natalie Mehra, executive director of the Ontario Health Coalition noting that even with the support of a law firm willing to do this work at half rates the cases are still very expensive.
“The court has told us that we don’t even have the right to be in court, even though the people most affected have no other recourse or access to justice. If we lose on appeal, the court can order us pay the legal fees of the government.”
The ruling in the Bill 7 Charter Challenge states that, “the harms to ALC patients caused by Bill 7 are modest. They do not affect the liberty, human dignity, equality, or autonomy of the ALC patients.” The court ruled that the requirement to pay $400 per day, “is not coercive” and described it as, “a modest economic consequence” saying, “the consequences of Bill 7 are not serious.”
Ms. Mehra stated, “For the families who provided affidavits to the court, the cost of $400 per day was absolutely prohibitive. It resulted in their loved ones being forced into long-term care homes that they did not want to go to. They described the hardship and suffering that resulted, including the increased use of drugs as a restraint, living in a room that is dark all the time, little to no programming, inadequate physiotherapy, inadequate staffing resulting in wait times of an hour-and-a-half to be toileted, and the attendant lack of dignity, not to mention healthcare consequence of these. These are the conditions and consequences that gave rise to our decision to take this matter to court. These issues continue to impact families who are coerced under Bill 7 into long-term care homes that are too far away or that cannot provide decent and humane care.”
Ontario has downsized its hospitals to the most radical extent of any province in Canada, at the same time failing to build long-term care and home care capacity to meet population need. Ontario has the fewest hospital beds staffed and in operation of anywhere in the country, by far.
“In response to the court’s ruling, we will not stop,” Ms. Mehra concluded. “We will ramp up our fight for humane and compassionate care for the elderly who need care and find ways to push for public policy change. We know that the majority of Ontarians believe it is immoral to treat the elderly who are in the last weeks and months of their lives in this way.”
The Advocacy Centre for the Elderly said in a statement that they, “are deeply disappointed that the Ontario Superior Court of Justice has upheld the constitutionality of the More Beds, Better Care Act (Bill 7),” and went on to say, “While we acknowledge the court’s decision, we remain steadfast in our commitment to advocating for seniors in hospitals and long-term care homes. The fight for dignity, autonomy, and fair treatment in Ontario’s healthcare system is far from over.”
Orchard Villa case
The Health Coalition and Cathy Parkes are still considering next steps.
“We will continue to fight for the right to compassionate and humane treatment for the elderly. For the families whose loved ones have suffered and died in Orchard Villa, we are so sorry. We share your heartbreak and frustration that there has been no justice and no accountability, and that the court dismissed this case despite the requirements of the legislation that were supposed to protect the public,” said Ms. Mehra.
“I am gravely disappointed in the court’s decision to dismiss our case. It was my hope that the court would review the past conduct of the Orchard Villa and determine that the granting of a 30-year licence was not warranted to a long-term care home with such a horrible track record,” said Cathy Parkes, daughter of Paul Parkes, a resident who died at Orchard Villa.
“The court’s statement that I do not have any future interest in expansion of Southbridge’s Orchard Villa couldn’t be further from the truth; the statement would imply that the families who lost their loved ones in Orchard Villa have no care about the fate of other people’s lives. Bill 7 also ensures that the statement from the courts can never be true.”
“In regards to the court’s statement that I do not have standing to represent the public, who better to represent them than one who paid the ultimate price?” she asked. •
Fact Sheet and Myth Buster on “Bed Blockers”
Public hospitals are not just “acute care facilities.” Hospitals provide acute care, chronic care (complex continuing care), palliative care, mental health care, and rehabilitation, among other levels of care.
Acute care is short term treatment for severe illness or injury. Hospitals provide acute care but they also provide elective surgeries and a whole range of other levels of inpatient and outpatient care. Patients that require post-acute or non-acute levels of service are not “bed blockers,” which is, in any case, an odious term that blames patients when they need compassion and care. Patients who require post-acute care often have a right to public hospital care under our Public Medicare laws.
The Canada Health Act expressly defines hospital care as including chronic and rehabilitative care. Under the Canada Health Act, patients have the right to reasonable access to care on equitable terms and conditions without extra user fees and extra billing. Fees specifically for accommodation or meals for chronic care patients1 are allowed but it is untrue to claim that chronic care (or complex continuing care as it is now called) is not hospital care that expressly falls under our public medicare and public hospital laws. Ontario’s Public Hospitals Act designates public hospitals as providing specific types of care, including chronic/complex continuing, rehabilitative, and convalescent care. Under Ontario’s Health Insurance Act, patients are covered by public health insurance in hospitals providing this full range of care.
It is not true that 10 – 20 percent of patients are “Alternate Level of Care” patients or “bed blockers,” “taking up” acute care hospital beds when they should be discharged.
Alternate Level of Care (ALC) is an administrative designation not a diagnosis, and the number and type of patients designated as ALC has changed over time. The term ALC refers to patients waiting in a hospital bed for another level of care. That care might be hospital care – for example inpatient rehabilitation, palliative care, intensive care, complex continuing care mental health or other. That care might also be care outside of hospitals – for example long-term care homes, home care, assisted living, community care and others.
Some patients designated as ALC to long-term care are not accepted by long-term care homes because their care needs are too high. They are likely more appropriately complex continuing care patients who have been mis-designated in the rush to try to clear out beds. Some patients requiring rehabilitation are denied that service and they and their families have to advocate to try to get it, even though the hospital may be trying to discharge them somewhere else without it. In addition, patients’ status changes. ALC patients may become acute care or intensive care patients if their condition becomes more unstable or deteriorates.
In Ontario, the extreme downsizing of public hospitals has resulted in a drive to classify patients as ALC earlier and earlier in their hospital stay in order to clear out beds but ALC is a catch-all and it is subjective. Furthermore, the data shows that it is simply untrue that there is any significant number of ALC patients who refuse to go to long-term care for months or years in order to stay in a hospital bed unnecessarily.
The Facts on ALC
By January 31, 2023, Ontario had a total of 4,740 ALC patients in all types of hospital beds (acute and post-acute), thus approx. 15.3% of all types of hospital beds were in use by ALC patients, not just acute care. Of those, 1,686 (5.4%) were waiting for long-term care, 545 (1.75%) were waiting for rehabilitation (which is hospital care), 561 (1.8%) were waiting for home care 260 (0.8%) were waiting for assisted living and 1,688 (5.4%) were waiting for another unidentified level of care.2 Those patients were in complex continuing care, acute care, mental health, rehabilitation, and other units.
From 1990 to 2014, more than 6,100 complex continuing care (also known as chronic care) hospital beds were closed down, thereby eliminating 54% of Ontario’s chronic care hospital bed capacity.3 At the same time, Ontario’s population grew from 10.3 million in 1990 to 13.62 million in 2014 (32%) – and had grown by a further 2.5 million to a total of 16.12 million by 2024. In addition, population aging has accelerated, which means that the proportion of the population that is elderly has increased. According to the most recent data, Ontario now has the fewest hospital beds per capita of any province in the country and ranks third last in number of hospital beds among all countries in the OECD. Ontario’s policy of downsizing hospitals has been radical and is a departure from the public policy norms of peer jurisdictions.
In order to accommodate the most extreme hospital downsizing policy in the developed world, successive Ontario governments have implemented strategies to re-categorize patients with ever-increasing acuity (complexity of care needs) as being ready for discharge. The standardized designation of “Alternate Level of Care” or ALC was adopted in 2009,4 following widening use of the designation over the prior decade. ALC patients are not a homogeneous group but rather have unique and varied care needs. They are nevertheless routinely treated as “bed blockers” who do not require hospital care – despite provincial and hospital data showing that a significant proportion are actually in hospital waiting for another appropriate level of care in hospital, including rehabilitation, complex continuing care, and others.
Long-term care is not “custodial care” and patients in hospital waiting for long-term care require 24-hour nursing support, support with activities of daily living and other care. Their care needs are not inconsequential.
To be eligible for long-term care in Ontario, the criteria are as follows:
(a) the person is at least 18 years old;
(b) the person is an insured person under the Health Insurance Act;
(c) the person,
(i) requires that nursing care be available on site 24 hours a day,
(ii) requires, at frequent intervals throughout the day, assistance with activities of daily living, or
(iii) requires, at frequent intervals throughout the day, on-site supervision or on-site monitoring to ensure their safety or well-being;
(d) the publicly-funded community-based services available to the person and the other caregiving, support or companionship arrangements available to the person are not sufficient, in any combination, to meet the person’s requirements; and
(e) the person’s care requirements can be met in a long-term care home.
Exaggerated numbers
The cost of a complex continuing care bed in Ontario is approximately $477 per day. Complex continuing care patients – who are patients that require chronic care that keeps them in hospital – may be charged a co-payment for their food and accommodation. (They may not be charged also, depending on their ultimate destination in or out of hospital.) Effective July 1, 2024, the maximum co-payment rate is $66.95 per day, or $2,036.40 per month.5 Transitional care beds and temporary beds opened for ALC patients are generally funded at the complex continuing care rate. Many patients deemed to be ALC to long-term care are in complex continuing care or other levels of hospital care, aside from acute care. Often the proponents of coercive measures to force patients out of hospital overstate the numbers.
More information for patients and their families regarding hospital discharges or moving patients to different units
Patients are often put under a lot of pressure to move to different levels of care or to be discharged. For more information about what rights patients have and answers to common questions, see “Hospital discharges, the rights of patients and their substitute decision-makers.” •
Endnotes
- In Ontario, the term complex continuing care (CCC) is used interchangeably with chronic care. Chronic care provides continuing, medically complex and specialized services to both young and old, sometimes over extended periods of time. Chronic care is provided in hospitals for people who have long-term illnesses or disabilities typically requiring skilled, technology-based care not available at home or in long-term care facilities. Chronic care provides patients with room, board and other necessities in addition to medical care.
- Exhibit B.
- Hospital Beds Staffed and in Operation.
- Cancer Care Ontario, “Alternate Level of Care Reference Manual, Vol 2” (January 2017) at p 13; see also Peter Nord, “Alternate level of care: Ontario addresses the long waits” (August 2009) 55(8) Canadian Family Physician 786.
- Rates can vary. For complete information see “Hospital Chronic Care Co-Payment.”
