There is no doubt the Alternative Level of Care (ALC) issue in Ontario hospitals needs prompt attention. Bill 7, the More Beds, Better Care Act, 2022, was pushed through the legislature in 13 days. Minimal debate was permitted and the government used its majority to prevent the bill from being sent to committee.
But Bill 7, a hotbed of ethical issues, will fail to deliver even marginal relief to our stressed hospital system.
Historically, hospital patients deemed to need an Alternative Level of Care (no longer in need of the level of care provided in hospital) were asked to choose five potential Long-Term Care (LTC) homes and were expected to accept the first available bed from their list. This approach worked over many years with most patients, though a minority refused to leave the hospital till their most preferred home could offer a bed.
The pandemic saw mounting morbidity and mortality in Ontario’s crowded nursing homes, pushing the Chief Medical Officer of Health to eliminate rooms with three and four beds. This measure reduced LTC crowding but increased the ALC wait list. As of May 2021, more than 38,000 patients were waiting for LTC, with a mean wait time of 171 days. Hospitals were barely able to function, let alone catch up on the backlog of surgeries postponed during COVID.
The hospital crisis put huge pressure on the province to increase system capacity. Something absolutely had to be done before another wave of COVID and/or flu arrived. So, Ontario decided to reopen some of the LTC beds closed in 2020. Unfortunately, many are in undesirable nursing homes.
The More Beds, Better Care Act authorizes placement coordinators with or without a request from an attending clinician to:
- Determine the ALC patient’s eligibility for admission to an LTC home.
- Select an LTC home or homes for the ALC patient within 70 kilometres in southern Ontario and 150 kilometres in Northern Ontario.
- 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.
- Authorize the ALC patient’s admission to a home.
- Transfer responsibility for the placement of the ALC patient to another placement coordinator who, for greater certainty, may carry out the actions listed above with respect to the ALC patient.
These actions may be carried out without consent if reasonable efforts have been made to obtain permission from the patient or the substitute decision-maker.
However, admission of a patient without consent is the very antithesis of a fiduciary relationship. It will be highly upsetting to both patient and family; it will cause moral distress to health-care professionals. It puts the LTC facility in a no-win predicament, receiving a resident who does not want to be there and whom the home may or may not want. While the government has amended the Health Care Consent Act, common law and ethical principles of consent remain extant in Ontario. In particular, consent must be given voluntarily.
Reluctant patients and families have significant and substantive concerns.
Good reasons abound for turning down many LTC facilities, including those with long-standing reputations for poor quality care, more outbreaks with higher mortality (during COVID and other outbreaks), fewer programs and services, etc. Further, patients understandably seek homes that speak their language, provide culturally appropriate food, respect their religious and/or cultural values and traditions, and can accommodate their disability. This is a matter of beneficence and nonmaleficence. Who will evaluate the validity of these concerns?
“If you don’t go to XXX home, we will charge you $400 a day” certainly meets the definition of coercion.
To this end, the province has developed the Long-Term Care Homefinder website. But the problem is not finding homes. The problem is finding good quality homes, in the patient’s area, with available beds. Many LTC residents rely on essential visitors for daily care. An individual moved to a home that is inaccessible (through distance or ease of access) to the essential visitor will result in the patient not receiving some essential care. This will not only harm the resident but also burden the already constrained LTC staff.
The government says residents sent to a “temporary” home can transfer to their preferred home when a bed becomes available. Sounds encouraging, but this option is almost impossible to realize. Regulations under the repealed LTCH Act delineated how beds were allocated. Regulations under the Fixing Long-Term Care Act, 2021 do not address how beds are allocated, but the same criteria appear to operate: crisis admissions and hospital transfers trump all other requests. Rarely can residents be transferred to their preferred home.
Bill 7 states, “Nothing in this section authorizes any person to restrain an ALC patient to carry out the actions listed … or to physically transfer an ALC patient to a long-term care home without the consent of the ALC patient or their substitute decision-maker.”
But since the legislation rightly does not permit physical transfer without consent or restraints to enable the transfer, what is the hospital to do? The only tool remaining is to charge the patient the per-diem rate, which the bill sets at $400 a day for those who refuse to leave. Since the patient has been declared ALC, OHIP will not cover the cost, leaving the patient to pick up the full tab. These tactics cause major financial and emotional distress for patients and families, as well as moral distress for health-care professionals who are agents to this process.
The act also states, “The actions listed … 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.” What is a reasonable effort? Who decides? Some hospitals are far more aggressive than others with respect to discharging/transferring ALC patients. How can voluntary consent be obtained when the hospital is threatening to charge the person? “If you don’t go to XXX home, we will charge you $400 a day” certainly meets the definition of coercion.
Finally, this legislation focuses exclusively on “ALC patients” awaiting LTC in hospital. It does not address patients designated ALC who are waiting for complex continuing care, rehabilitation or mental health beds. These patients may represent an even larger group. Major issues of justice and equity surface here.
More Beds, Better Care gives Ontario care coordinators authority to move reluctant patients into nursing homes where no one wants to live. The act will cause suffering for patients and families and moral distress for hospital and nursing home staff. What it doesn’t do is give those nursing homes the resources to care for more patients. Ontario, like many jurisdictions, faces an unprecedented staffing crisis in hospitals and LTC. Where will this additional staff come from?
More Beds, Better Care is ethically and legally unsustainable. And as public policy, it’s a dead end.