Controversial Ontario law designed to free up hospital beds could impact Maritime provinces

Dalhousie professor on controversial hospital law Professor Wayne MacKay of Dalhousie University discusses law that allows hospitals to discharge patients to long-term care.

A new Charter challenge that got underway Monday will test the constitutionality of a controversial Ontario law allowing hospitals to place discharged patients into long-term care homes not of their choosing or face a $400-a-day charge if they refuse.

The Ontario Health Coalition and the Advocacy Center for the Elderly argues the law, known as the "More Beds Better Care Act" or Bill 7, violates the Charter of Rights and Freedoms.

However, the province of Ontario disagrees.

It's an issue is garnering interest outside of Ontario, including in the Maritime provinces.

Wayne MacKay, professor emeritus of law at Dalhousie University, says this is because many things that happen in Ontario are a model for governments elsewhere.

"But more significantly… this is such a big problem everywhere in Canada. The problem of not sufficient hospital beds and not sufficient long-term care beds, that's the core problem," said MacKay during an interview on CTV News at 6 on Thursday.

Ontario Premier Doug Ford's government rammed Bill 7 through the legislature within days in September 2022, bypassing public hearings.

The law allows hospital placement co-ordinators to choose a nursing home for a patient who has been deemed by a doctor as requiring an "alternate level of care" without consent.

The patient's health information can be shared to such homes without consent. Patients can also be sent to nursing homes up to 70 kilometres from their preferred spot in southern Ontario and up to 150 kilometres away in northern Ontario.

"It's (the law) trying to get rid of the bottleneck of people in hospitals under acute care treatment who, once they're discharged, have no place to go," said MacKay. "They're on long lists for nursing homes or other situations, but no where they can really go and there's a long list to get the one they want. So, what they've done now is to say the hospital can assign you to one, whether or not you want it.

"It's a fairly restrictive thing for those people… It's clearly a massive problem that needs to be addressed, but I think they've targeted a very vulnerable group, mostly over 65, who are in a situation where they have very few options, rather than trying to solve the problem in another way."

MacKay says the Ontario Health Coalition and the Advocacy Center for the Elderly's argument of Bill 7 violating the Charter of Rights and Freedom is a good one.

"You never know how this will play out, but their argument is basically on two parts of the charter. The one Section 7, dealing with liberty and security of the person, and they're saying clearly this infringes on the autonomy of the patient who is there and now being discharged and doesn't get to choose where they go," said MacKay. "And possibly freedom of information as well. They don't need consent to transfer their information, and all of that not necessarily imposed, but if you don't accept that, it's a $400-a-day payment."

MacKay said part of the Ford government’s argument in court is proving if this law will actually work.

"The groups challenging it are saying the situation has actually gotten worse since the law has come in. Thirty per cent more people are in hospital beds who should be in long-term care. The government's responding saying that's just population increase," MacKay said.

"But if it actually doesn't work, this is a very big restriction on a very vulnerable group of patients in order to try and solve the problem… Equality is also raised because they're saying the group that's paying the price of trying to solve the bed problem are primarily older people, people with less income, people with fewer options, so a very vulnerable group."

"Nobody disputes there's a problem with not enough beds, but how do we solve it and this seems to be a really tough way to solve it."

If Ontario wins the court case, MacKay said it could have large implications across the country, including the Maritimes.

"Because as I've been saying, there's a big problem with not enough beds and this bottleneck exists so that people can't get at acute beds because they're being occupied by people who should have alternate levels of care or long-term care, so that's there," he said.

"But if the courts say this is not a problem and constitutionally passes the test, then a lot of other administrators are going to look at it and say, 'Well, why aren’t we trying this?'"

MacKay says he believes creating more beds would be a better way to approach the problem, rather than targeting people who didn't cause the problem, but happen to be in the wrong place at the wrong time.

With files from The Canadian Press.