Judge grills lawyer challenging $400-a-day long-term care law

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

Advocates challenging Bill 7 got a rough ride on Monday.

The Ontario Health Coalition (OHC) and the Advocacy Centre for the Elderly (ACE) brought a Charter challenge of the Ford government's controversial law that fines hospital patients $400 a day for refusing to move to a long-term care home not of their choosing.

Their lawyer, Steven Shrybman, argued that the law violates patients' rights to equality under Section 15 and to life, liberty and security under Section 7 of the Charter. 

Justice Robert Centa pushed back on several of Shrybman's arguments, with both becoming clearly frustrated at times.

INSIDE THE VILLAGE: Ontario is sending elderly patients to faraway nursing homes

Particularly contentious was patients being designated as "alternate level of care" (ALC) by physicians. Centa understood the term to mean that the patients no longer needed hospital care. Only patients that have been designated as ALC are eligible to be moved under Bill 7.

But ALC doesn't mean patients are cleared to go home. Most need care in another hospital setting, like psychiatric or complex continuing care, Shrybman said. Often, hospitals are ill-equipped to provide that care, he said.

Shrybman had to work hard to get the judge to understand his basic argument, often spending time explaining what he was not arguing.

For example, it's not about the right to a hospital bed, he said.

“Isn’t it, though?” Centa said. "Why do you have the right to remain in a hospital bed without contributing $400 to the cost of that hospital bed?"

It's about the effects of being pushed out, Shrybman said, arguing that a patient shouldn't be coerced into a long-term care home “where you’re the only one who speaks Chinese.”

“But there’s also no right to a long-term care home where the caregivers speak Chinese," the judge said.

He said patients still have a choice under Bill 7 — to go to the home the hospital chooses, or to stay “and contribute $400 toward the $1,200/day cost to keeping you there.”

Shrybman disagreed that that was a real choice.

The lawyer often had to regroup and zoom out to the larger issue. He argued the government has a "fundamental misunderstanding" that the time ALC patients spend in hospital is their own fault for refusing long-term care placements — the so-called "bed blocker" argument.

In its submissions, the Crown refers to patients “who make choices to lengthen their hospital stay,” Shrybman noted.

Some of the families of those patients were in the courtroom. Norah Chaloner, 85, said her husband Richard was in five different institutions after he had a stroke. He died earlier this year after considerable stress, she said.

"I just want to see a better system that works for everybody," said Chaloner, a former public health nurse.

"We fear for people your age," she told this 29-year-old reporter. "Those supports are not going to be there for you at all."

ACE lawyer Jane Meadus said people don't want to languish in hospitals — but they want to go to care homes where they'll be well taken care of, Meadus said.

"They want to get out, but forcing them into places they don't want to go, where they can't visit families, where they don't believe the care is adequate for their needs, is just not the way to solve the problem," she said. 

"Even just today, we're getting calls and calls from people who are in similar situations and are very fearful," she said. 

Speaking at an unrelated press conference on Monday, Premier Doug Ford said elderly patients are better taken care of in long-term care, even if they don't choose the home. He suggested that people are abandoning their elderly parents in hospitals. 

"We actually have people that drop their parents off ... and just leave them and walk away. How could you do that, man? I'd never do that to my parents," he said.

"So we've moved thousands of people, and there's no one happier than the CEOs of all the hospitals," Ford said.

NDP long-term care critic Wayne Gates said the law is "wrong."

“This is an attack on the dignity of seniors, the very people who built this province," he said in a release.

The NDP added that the number of ALC patients has gone up by 30 per cent since the law took effect. 

Green Leader Mike Schreiner drew attention to the Ford government's propensity for attracting legal challenges.

“How many lawsuits and charter challenges is that for Doug Ford’s government now?" he said in a statement, calling Bill 7 "an attack on the rights of the frail and elderly."

Five patients have been fined under the law, including one who was fined almost $30,000. 

Removing patients' choice via "coercion" is a violation of the Charter right to freedom of choice, Shrybman argued.

“But there are no other spaces," Centa said.

Ontario has about 25,000 long-term care vacancies each year, Shrybman noted. “So when you say there is no other option, no, there are 25,000 other options," he said.

Centa was quick to point out that if Shrybman is arguing that patients shouldn't be moved far away, then there aren't really that many appropriate spaces.

"It's not 25,000," he said.

"Okay, you're right," Shrybman said.

He stressed that the issue before the court was not the lack of long-term care beds, but that in dealing with the problem, the government is increasing health risks for patients.

"The suffering of these patients will increase and their lives will be shortened,” he said, referring to testimony from Dr. Amit Arya and various “empirical and documented” evidence in medical journals.

Shrybman also raised concerns over the dissemination of health information. Centa appeared the most skeptical of this point.

Hospitals can share patients' health information "indiscriminately" with long-term care homes not of their choosing, Shrybman said.

“No, not indiscriminately," Centa said, calling the lawyer's characterization unfair. 

Centa noted that agencies share health information "all the time" — including courts, in sexual assault cases, for instance — and that the practice is tightly regulated.

“We’re not asserting a right of control over personal health records,” Shrybman said. “What I’m arguing is that when you lose what little control you might have over how it might be shared, that is an effect on your liberty rights.”

At one point, Shrybman noted that Ontario has among the lowest number of hospital beds per capita in Canada. 

“I can’t do anything about that," Centa said.

Speaking to reporters after the hearing, Shrybman said it's good that Centa was engaged. 

He said there's no evidence that bed-blockers are clogging up the system. 

"They are the cohort of people in our society that are more the victims of the failure of our health-care system than arguably anybody else in society," he said. "This is a classic blame-the-victim piece of legislation."

Referring to the tough questions, Meadus told The Trillium that the judge had "clearly done his homework."

"We'll hopefully see the same on the other side," she said with a laugh.

Centa also grilled Shrybman on whether the advocacy groups had legal standing to represent patients affected by Bill 7. 

The patients are often elderly, infirm and can't advocate for themselves, Shrybman noted. As such, the OHC and ACE should have public interest standing to represent them, he argued.

Centa clearly would have preferred that one or more of the family members of the patients — known as a "litigation guardian" — represented them instead. That would have let him consider the constitutionality of the bill based on what happened to a specific person, as opposed to what often amounts to "unattributed hearsay," he said.

Shrybman asked him to consider the situation those caregivers are in, many of whom are advocating for the stress of an ailing relative. The experts' opinions quoted in their case are “thoroughly supported with data and empirical evidence. Their evidence is not about hearsay," he said.

Shrybman and Ontario's lawyer, Zachary Green, declined to be interviewed during the morning break.

The Crown will respond on Tuesday.