At the outset of the Covid-19 pandemic, elders living in long-term care homes suffered a major burden. They experienced a disproportionately high number of deaths from the virus. This was not only because they were older, but also because of the conditions existing in the homes, some of which preceded the pandemic, but others of which reflected inadequate pandemic practice. Once again, through Bill 7, More Beds, Better Care Act, 2022, elders are potentially sacrificed in efforts to rescue the Ontario healthcare system.
Bill 7 amends the Fixing Long-Term Care Act, 2021 (FLTCA), the “fundamental principle” of which is that “a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met” (s.1). The FLTCA is intended to address the criticisms long directed at the long-term system, which were highlighted and exacerbated by the pandemic.
(I wrote a Slaw post about long-term care and Covid on July 14, 2020; for media reports during the early period of the pandemic, see here, here and here; more recently re promised air conditioning here; also see the report of the Long-Term Care Commission, which discusses conditions in long-term care both prior to the pandemic and up to early 2021. The government identified areas for improvement and undertook to show progress towards the objectives: see here.)
We also knew the healthcare system had flaws and frustrations before the pandemic, but they have worsened with the pandemic. While the government might have addressed the situation with some of the money from the federal government that has remained unspent, increased public sector workers’ wages beyond the 1% cap under Bill 124 (see here) and other means, it has chosen to talk about innovative solutions that increase the private elements in the system (see here) and has brought in workers from the private system who are paid more than those in the public system, along with urging the hastening of credentials for internationally trained workers (see here) and retention bonuses (see here).
It has also introduced Bill 7, which provides for the transfer of patients in hospitals who have 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” (s.2, Bill 7, adding s.60.1 to the FLTCA). Termed ALC patients, in plain language, this refers to patients who should be in long-term care or require help to live at home, but who have not yet been given a place in a long-term care home of their choosingl or who cannot acquire adequate home help. They are taking up beds required by patients needing actual hospital care.
Before reviewing Bill 7’s provisions, I set out the usual process for admission to long-term care homes. A reminder that long-term care homes continue to face their own problems.
THE FIXING LONG-TERM CARE ACT
In April 2022, the FLTCA replaced the Long-Term Care Homes Act, 2007 (LTCHA). (The process for admission to long-term care homes under the FLTCA is similar what it was under the LTCHA.) Under 47(1) of the FLTCA, the Minister of Long-Term Care designates placement co-ordinators for long-term care homes within a specified geographic area (the area is determined under the Local Health System Integration Act, 2006). Either an individual or a substitute caregiver (for ease, I’ll refer only to an individual themselves) applies to a placement co-ordinator for a determination of whether they are eligible for admission to long-term care. The placement co-ordinator makes that determination and if the person is eligible, authorizes their admission to a specific home, among those the individual had previously selected (ss. 49-51 FLTCA). The co-ordinator submits a request to the home, which then decides whether it can provide the care the individual needs. (Community Care Access Centres [CCACs] formerly played this role.) However, the placement co-ordinator will not submit a request to a home if there are more than five outstanding requests. The nature of the assessments of eligibility are listed in section 50(4) of the FLTCA (such as the applicant’s physical and mental health, functional needs, behaviour, among others) and section 172 of O.Reg. 246/22.
The person must provide consent to admission to the home (s.51 FLTCA) and as noted above, this will be a home the person has selected. Section 52 establishes the requirements of “consent”:
1. The consent must relate to the admission.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud.
Furthermore, the individual is entitled to certain kinds of information before giving consent (1. What the admission entails. 2. The expected advantages and disadvantages of the admission. 3. Alternatives to the admission. 4. The likely consequences of not being admitted.)
There are also provisions for removal of an applicant from all waiting lists if they do not accept admission to a home when offered or do not move in within five days (with exemptions provided) (s.185(1), O. Reg. 246/22).
That is the usual process.
The FLTCA also provides for “direct access beds”. The Minister may designate these in a long-term care home (s.235 O. Reg 246/22). The co-ordinator shall place applicants on a waiting list for direct access beds if
(a) the person requires immediate admission to a long-term care home;
(b) the person is determined by the placement co-ordinator to be eligible for long-term care home admission as a long-stay resident under section 172 [the criteria determining eligibility];
(c) the person occupies a bed in a hospital under the Public Hospitals Act that is specified in a designation made by the Minister under section 235 [designation of direct access beds]; and
(d) the person requires an alternate level of care at the hospital specified in the designation for at least 60 days while waiting to be admitted to a long-term care home. (s.236 O.Reg. 246/22)
Under these circumstances, the individual may be on only one waiting list and must consent to being removed from other waiting lists and applicants meeting the requirements must be asked if they wish to be placed on a direct access bed waiting list and will be placed on the list if they consent (s.236(5) and (6) O.Reg. 246/22).
(I note that there was also provision for something similar under O. Reg. 79/10 under the LTCHA.)
How does Bill 7 accord with the “promises”, values and consent procedures under the FLTCA?
Bill 7 is intended to make it easier to move patients who do not require actual hospital care (that is, Alternate Level Care (ALC) patients) into long-term care homes. Apparently, “a]ccording to the Ontario Hospital Association (OHA), there were 5,930 ‘alternate level of care’ patients — those deemed to no longer be in need of acute care — in hospital as of Aug. 17, of which 40 per cent were waiting for a space in long-term care.” (See here.) Significantly, Bill 7 permits certain actions that do not require the consent of the ALC patient in the hospital:
1. An attending clinician who reasonably believes that an ALC patient may be eligible for admission to a long-term care home may request that a placement co-ordinator carry out any of the actions listed in subparagraphs 2 i to iv.
2. A placement co-ordinator may do the following, with or without a request from an attending clinician:
i. Determine the ALC patient’s eligibility for admission to a long-term care home.
ii. Select a long-term care home or homes for the ALC patient in accordance with the geographic restrictions that are prescribed by the regulations.
iii. 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.
iv. Authorize the ALC patient’s admission to a home.
v. 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.
As Bill 7 states explicitly, none of the above requires the ALC patient’s consent. The criteria under sections 49 to 54 of the FLTCA determining eligibility and admission do not apply. Almost as a “by the by”, ss.(4) of the new s.60.1 of the FLTCA states, “The actions listed in subsection (3) 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.” Nor may restraint be applied, unless the patient consents. Section 3 of Bill 7 contemplates regulations changing processes under the FLTCA with respect to ALC patients.
Under Bill 7, the placement co-ordinator may make decisions without the ALC patient’s involvement or agreement, although only “if reasonable efforts have been made to obtain the consent of the ALC patient or their substitute decision-maker” (s.60.1(4) FLTCA, if amended). There are no criteria determining “reasonable efforts”, although that may be addressed in regulations. If the ALC patient or substitute decision-maker does consent to any of these steps, “the relevant portions of sections 49 to 54 and the regulations apply to the stages of the process to which they have consented, subject to any modifications or exemptions set out in the regulations” ((s.60.1(6) FLTCA, if amended).
There are other consequences of the procedures under Bill 7, such as any actions provided for under regulation (under Bill 7) not being vulnerable to being found inconsistent with the Residents’ Bill of Rights that is supposed to govern long-term care homes or the use of personal information.
CRITICISM OF BILL 7
Criticism of Bill 7 stems from its emphasis on lack of consent and general lack of co-ordination with ALC patients and their families. ALC patients are often particularly vulnerable people. They are in hospital because they cannot go home or cannot move into a long-term care home of their choice, given the long waits before space becomes available. Families and patients worry that the patient will be moved to a long-term care home a considerable distance from their families or to a home of inferior quality. They are intimidated by the threat of exorbitant hospital costs of $1,500 a day, the uninsured rate. The idea that consent would be real under the operation of Bill 7 is untenable. (For a discussion of the concerns and of the pros and cons of Bill 7, see this CBC story.)
The attitudes reflected in Bill 7 and the treatment of ALC patients likely to occur under it are perhaps best illustrated by how the government is responding to its critics who include family members and experts and activists in elder care. The government is not following the usual legislative process. It is advancing the Bill to third reading without taking it to committee (see CBC report here). According to the CBC report, though, the government says it is having “conversations” about the regulations, which of course are made by Cabinet and tend not to involve real consultation. Regulations are also often more substantive than provisions that provide detail to legislative provisions.
There is no question that the healthcare system is in trouble. We have seen emergency rooms closed and lengthy delays before people are able to get a hospital room. Nurses and other healthcare workers are exhausted, working past their shifts and caring for more patients than is sometimes considered safe. (For descriptions, see, for example, this CBC interview with a cardiologist in Kingston, Ont., and the executive vice-president of Ontario Health; also see a Global News story here.) When we speak of “beds”, we have to remember that it is not always furniture that is the issue, but the nurses and other staff necessary to treat patients in the beds.
These are not new problems, but they have been exacerbated by Covid-19. And as we do so often, we take a snapshot of one aspect of a problem, without placing it in context or within the larger picture. This is what Bill 7 does. The reason there are a large number of ALC patients in hospitals is because home care, despite claims made for it, is inadequate, whether for the patients themselves or for family members who care for them and because we rely on a long-term care system that cannot respond to the claims on its places.
Bill 7 makes ALC patients an easy fix for hospital problems or for at least some of the problems. And they are an easy target: mostly elders and often part of an underclass who themselves or their families have difficulty navigating the system or have sufficient resources to provide care. Because while it may be true that ALC patients do not require hospital care, they usually do require care. If we want pawns to move around the chess board, there they are, just waiting.
A PERSONAL POSTCRIPT
I admit I do not come to this issue from a totally disinterested perspective. I do not think of it as an abstract matter. Some years ago, prior to the advent of the FLTCA and certainly not within range of Bill 7, my father became what we would call an ALC patient, although the people we dealt with did not use that term. They did, however, make it clear that he did not belong in the hospital and after an assessment, the examiner advised he was incompetent to make his own decision about where he would live. He wanted to return to the independent living facility where had been living for a few years. The CCAC began to raise a full day’s cost to stay in the hospital and recommended that he move to a facility that was not particularly convenient for me.
I visited the facility and like many of these places, it was a very nice place for those who could care for themselves and, as it turned out later, could afford it, but pretty spartan for those who couldn’t. Nevertheless, I put down a deposit. I then learned that while he had been assessed in the hospital, he would be assessed again once he reached the home and that assessment would govern. If it turned out he was now competent, he would be charged the cost of living in the other part of the facility (it would be too late for him to return home), a very considerable amount.
Now my father had not been happy with the assessment in the hospital. He wanted to appeal and I started the process. I also explained why I thought his capacity level had changed: I believed the problem had resulted from medication and as it wore off, his level of capacity rose (as it were). Lo and behold, the person who had assessed him suggested she reassess him and to her amazement (“this has never happened before”), he was competent. I cancelled the arrangement with the facility and he moved back to his home, with help a few hours a day. It was never enough and it became increasingly inadequate.
We started the process for a move to long-term care. I won’t go into the problems with that process. I visited a number of long-term care homes in order to compile my list of five, after discussion with my dad, some of them welcoming, some nicely turned out in the public areas. One in particular stands out even now, some eight or so years later. My sister and I visited it together; it was close to where I live. It shook us and terrified us that this was where my father might have lived out his years. I asked what kind of waiting time there was; not long was the answer; why when so many places had months before there might be a place? Because, came the answer, people come here who have no one to advocate for them.
My father did move to a long-term care home, the first on our list because it was close to me. The place my sister and I visited (it did not, needless to say, find a place on the list)? It was one of those the government sent the military into during the initial period of the pandemic because of the number of deaths from Covid and the conditions. Yet this was a home licensed by the government to operate as a long-term care home. When people are concerned about Bill 7, it is hard to imagine that this would not be a place where ALC patients might be sent against their and their families’ wills, especially if they are particularly vulnerable and without advocates.
The swift passage of Bill 7, the lack of public consultation, is, of course, presented as necessary to respond to the urgency of the crisis facing healthcare in Ontario. What is missing is a recognition that this is not an abstract exercise, that ALC patients are not people who are selfishly taking up space, but people who deserve respect and dignity. They at least deserve the values envisioned by the FLTCA, even if they are not in real life perfectly realized.