Opinion

 A public policy dead end: The More Beds, Better Care Act

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.

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7 Comments
  • Peter Forte says:

    Bill 7 is unquestionably flawed, and who knows how adopted (and effective) its enforcement will be, but this article is just another myopic view of the policy (with no alternative solutions offered).

    Which one of the following options is the more unethical situation: (1) forcing a person who no longer requires hospital care to move to a LTC facility that is potentially far away from family and friends; or (2) forcing a person who absolutely requires hospital care to wait days or weeks for a bed that is currently being occupied by a person that can and should be effectively treated outside the hospital?

    That is the question we need to be asking, and to me, it isn’t even close.

    In an ideal world, we wouldn’t have to be in a situation where something like Bill 7 had to even be a consideration; we should have sufficient hospital and post-acute capacity to support better transitions of care, but alas, after years of poor investment and policy, we don’t.

    When a system in crisis, there is no such thing as “perfect” health policy. It is a high-stakes game of tradeoffs and finding the lesser of many evils. Albeit aggressive, Bill 7 is just another attempt to deliver the right care, in the right place, at the right time – to move ALC patients to the most appropriate care setting in the fastest time possible, whilst getting hospital beds for those that are desperately in need of acute care services.

    It would be great if the authors offered alternatives solutions. Obviously the actual best solution would be to make thoughtful investments in primary care to reduce avoidable hospital admission and attack the ALC issue from upstream, but that isn’t a solution for a potentially catastrophic problem that is only weeks away.

    • Bob Parke says:

      Thank you for your comments which are appreciated and respected. Certainly there is much to consider in response to Bill 7 and with limited space available it is not possible to explore all options some of which are cost effective while providing excellent care. For example having more inpatient hospices which the Auditor General made both the needs case and the business case. Such facilities could give more local options beyond hospitals and free up some beds. I would like to see an emphasis on enhanced home care to try and keep people in community for as long as possible. However, just LTCs are facing staffing problems so too is home care. To address this I think a robust caregiver leave modelled on the maternity leave could be a further option that some would take advantage of if available. Alone hospice and caregiver leave programs will not solve the ALC problems but they are a constructive, cost effective way to make a positive impact for the patient, their families and the system. Thanks for your comments

  • Mark Taylor says:

    The authors make valid points that I agree with. However, it is unfortunate that they did not consider some other points. First of all, acute care hospitals are very bad places for elderly, frail patients, unless they have conditions that can’t be treated elsewhere. Hospital-acquired infections, profound deconditioning, and lack of appropriate services frequently lead to the untimely death of patients who otherwise may have had years to live. Also, for every frail, elderly non-acutely ill patient occupying an acute care bed, there is one (or more) frail, elderly, very acutely ill patient suffering in the Emergency Department who is not getting the appropriate services that that sick person is entitled to. Hospital beds are not appropriate for patients who are not sick, and ED hallways and ambulance stretchers are not appropriate for patients who are sick.

    • Peter Allatt says:

      Mark, I couldn’t agree more: ALC must be addressed promptly. This complex issue will need a multi-pronged approach, and I’m not confident that Bill 7 will address the many problems you clearly and cogently articulate. I am concerned with its unacknowledged impacts on elderly people and their essential care providers.

  • Don Taylor says:

    Kudos to the authors for flagging the real and potential ethical issues. Would have been helpful if the authors had at least attempted to offer alternatives. And it wold have been useful to know the typical daily rate is for ALC homes and how much of this cost is covered by OHIP, if any. Then we could better assess the fairness of the $400 daily charge.

  • rivie seaberg says:

    I am a 75 year old Registered Nurse who recently retired after 50 years of practice. This practice included nursing the elderly in a variety of settings. I loved nursing and when ill health and old age forced me to retire I was devastated. My feelings of devastation have increased with the passage of Bill 7.
    There is very little I can add to the article by Peter Allatt and Bob Parke. The article is an eloquent and compelling indictment of Bill 7. The More Beds, Better Care Act. Neither more beds, nor better care, will result from the passage of this Act. As a healthcare professional and a recipient of healthcare, I am both offended and deeply ashamed that the provincial government has passed this legislation-for shame!! Rivie Seaberg, R.N. (retired)

Authors

Peter Allatt

Contributor

Peter Allatt, BA, MA (Bioethics), MHSc. Retired Bioethicist; Member, University of Toronto Joint Centre for Bioethics.

Bob Parke

Contributor

Bob Parke, MSW, RSW, MHSc (Bioethics), Bioethics Consultant.

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