Patients taking up hospital beds a serious problem, government argues in defence of Bill 7

EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted to covering provincial politics at Queen’s Park.

The Ford government is in court Tuesday 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 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. 

Ontario's lawyer, Zachary Green, took on several of the challengers' arguments, arguing that 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.

Despite the advocates' argument that so-called "bed blockers" are a "very, very tiny problem" for the health-care system, they're not, Green said. Most patients that have been deemed to no longer require acute care — known as "alternate level of care" or "ALC" patients — are 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. 

“What that means, then, is that on average, five or six people waiting in the emergency room, or in the hallway, or in an ambulance, or on the sidewalk could have received acute care inpatient hospital services during the time that the median ALC patient occupies the bed waiting for a non-hospital service,” 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.

“So that’s the ‘tiny, tiny problem’ and the ‘minute number of patients’ that my friend was referring to yesterday," he said.

Green stressed the shortage of hospital beds in Ontario, which no one in the room would dispute.

ALC patients taking up beds “'dramatically impacts hospital capacity and hospital throughput,'" resulting in emergency room overcrowding, he said, quoting a physician.

Lost in the discussion of numbers is the fact that these patients are real people, said Natalie Mehra, the director of the Ontario Health Coalition, one of the groups bringing the lawsuit. 

Often, someone will have to go to the hospital after a fall, and their spouse will be pressured by a group of hospital administrators to leave — and go somewhere that is often 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.

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.

The applicants argued that many ALC patients are waiting for care in another hospital setting, like rehab. But the government noted that argument doesn't apply to people being transferred to long-term care.

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.

Green 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, he said.

“There is no legitimate leverage that a patient should use to make scarce and finite hospital resource allocation decisions — to bend those decisions in their favour," he said.

The applicants argued that the choice between going to a long-term care home not of one's choice or paying $400 per day isn't a real choice.

But section 7 doesn’t guarantee a right to stay in a publicly funded hospital without charge.

Green noted that the other side's lawyer said on Monday that he wasn’t asserting that right. If so, Bill 7 shouldn’t be a charter problem, Green said.

By the end of Tuesday, both sides will have finished their arguments. Centa will then decide in the coming weeks or months whether the bill is constitutional. 

Mehra said it was difficult to see the judge give the Crown an easier time.

"It's hard to listen to all these numbers and all of this esoteric stuff —  I mean, these are patients. 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," she said.

More to come...