Ontario must make “heartbreaking” decisions about how to allocate hospital care, “a scarce and precious and finite resource,” a government lawyer argued Tuesday.
The Ford government was in court defending a law that sets out fines for some hospital patients who refuse to move into long-term care homes that they did not choose. Two health advocacy groups have brought a Charter challenge of the controversial law, known as Bill 7.
On Monday, they argued before the province's Superior Court that the law violates patients' rights to equality and to life, liberty and security under the Charter.
In response, Ontario's lawyer, Zachary Green, said hospital overcrowding is made worse by patients refusing long-term care placements, and that it's not a violation of their rights to levy fines to encourage them to leave.
He faced some clarifying questions, but no serious pushback from Justice Robert Centa, unlike the applicants did on Monday.
Patients blocking acute care beds a serious problem: government
Patients cleared for discharge who are still in acute care beds are not, despite the applicants' arguments, a "very, very tiny problem," Green said. Most patients that have been deemed to no longer require acute care — known as "alternate level of care" or "ALC" patients — are still taking up acute care beds, he said, referring to Ministry of Health statistics.
There are more ALC patients in acute care beds than there are in all other beds combined — and most of those are waiting for long-term care, Green said.
Moreover, the median wait time for an ALC patient in an acute care bed is 40 days. The average stay for all acute patients is seven days, he said.
In the time an ALC patient stays in an acute care bed, five or six patients waiting in ERs could've been helped, he said.
He quoted several doctors who talked about patients waiting for long-term care for months — or over a year — in an acute care bed.
In his response, the applicants' lawyer, Steven Shrybman, said he agreed that ALC patients in inappropriate beds is a serious issue, and that he only meant that there's no evidence of "bed blockers" — which he described as someone "who simply refuses to compromise ... and will be happy to stay in the hospital for as long as it takes for their preferred choice to become available."
'We were definitely bullied': wife of man transferred
Government lawyers also argued that the bill has guardrails. Hospitals must try to obtain consent wherever possible, and to take into account language preferences and distance from family, they said.
But that's not what happens in reality, said Natalie Mehra, the director of the Ontario Health Coalition, one of the advocacy groups bringing the lawsuit.
Often, a senior will go to the hospital for something like a broken hip. After the surgery, their spouse will be pressured by a group of hospital administrators to go somewhere that is too far for their loved ones to visit, Mehra said. That's when they call her.
"They're shaking, they're crying, they're so stressed. It's just a terrible time of their life. It's the most heartbreaking thing," she said.
One of those spouses was Norah Chaloner, 85, whose husband Richard landed in hospital after a stroke. He died earlier this year after being transferred to a long-term care facility 40 kilometres away from their home, despite Chaloner's protests.
Chaloner said she has macular degeneration and doesn't like to drive outside of her city of Guelph. Her kids live in Toronto and Ottawa, so they couldn't visit Richard often.
"That was brutal for me, driving that distance," she said, adding that his friends weren't nearby either.
While the hospital didn't bring up fines, Chaloner said they were clear that Richard would go to the bottom of the wait list if she refused the transfer.
"We were definitely bullied," she said.
Mehra added that Ontario now has more ALC patients than it did when this bill was passed in 2022.
"So clearly it has not solved the problem," she said.
Richard's time in hospital wasn't much better, with patients in the hallways and stressed-out nurses, Chaloner said, calling it a "brutal system."
"The money has to be put back into health care that's been taken out and diverted to building more roads and concrete things," she said.
Chaloner and Mehra said it was tough to watch the lack of discussion in the proceedings about the impact on individuals.
"These are human beings that they're talking about, and they're patients at the end of their lives, and there's a lot of suffering that goes along with these decisions," Mehra said.
A question of consent
Justice Centa told the applicants that charging patients $400/day doesn't amount to removing them without their consent.
“They can stay in the hospital, they just have to contribute to the cost of care,” he said.
“Is there any evidence in the record that a single Ontario resident has been removed from a hospital against their consent?”
“No, that's not our submission,” a lawyer for the applicants said.
“That’s a problem for your case,” Centa said.
Shrybman stressed that he was not arguing that everyone has a right to a hospital bed, but that the government must comply with the Charter when deciding who gets those beds.
"I've just been unable to persuade you," he said.
Green stressed that clinicians make the decisions about whether to designate patients as ALC, despite the other side implying that placement coordinators "roam the halls" looking for people to put into long-term care.
The government lawyer also took issue with the challengers' argument that Bill 7 undermines ALC patients' “leverage” in their “negotiations” with hospitals. Decisions on who should get limited hospital beds should be based on clinical need — not by those who can "bend those decisions in their favour," he said.
Both sides have finished their arguments. Centa will decide in the coming weeks or months whether the bill is constitutional. He thanked both sides.
"You've given me an awful lot to think about," he said.
Mehra said it's too early to say if she and her co-applicants will appeal the decision if it doesn't go their way.
"We will definitely look at every avenue open to us to continue to advocate to protect patients' rights and deal with the crisis created by closing too many beds and not building the needed long-term care and home care," she said.
