On January 20, 2025, the Ontario Superior Court of Justice released its decision in Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario (2025 ONSC 415), dismissing an application that challenged the constitutionality of Ontario’s More Beds, Better Care Act (“Bill 7”). Bill 7 facilitates the transition of patients who require an “alternate level of care” from public hospitals to long-term care homes. The Court held that Bill 7 advances an important social objective without violating a patient’s constitutional rights.
The More Beds, Better Care Act
In 2022, the Ontario government passed Bill 7, the More Beds, Better Care Act, in an effort to transition patients who require an alternate level of care from public hospitals to long-term care homes, thereby preserving hospital capacity. Alternate level of care (“ALC”) patients are those who occupy a hospital bed but who are designated by an attending clinician as no longer in need of the intensity of resources or services provided in a hospital care setting. Bill 7 amended the process for admitting ALC patients to long-term care homes as set out in the Fixing Long-Term Care Act and the Health Care Consent Act.
Specifically, Bill 7 permits long-term care placement co-ordinators, with or without a request from an attending physician, to take certain actions in respect of an ALC patient without their consent (or the consent of their substitute-decision maker), provided that reasonable efforts have been made to obtain consent. These actions include determining the patient’s eligibility for a long-term care home, selecting a long-term care home for the patient, providing the long-term care home with prescribed assessments and information about the patient, and authorizing the patient’s admission to a long-term care home.
Long-term care home operators are required to review the assessments and information provided by the placement co-ordinator in respect of the patient and approve the patient for admission as a resident of the home, unless a prescribed condition for not approving the admission is met (for example, the home lacks the physical facilities necessary to meet the patient’s care requirements or the staff lack the nursing expertise necessary to meet the patient’s care requirements). Once a bed becomes available and the placement co-ordinator has authorized the patient’s admission, long-term care home operators must admit the patient as a resident of the home.
Bill 7 also amended the Hospital Management Regulation under the Public Hospitals Act to support this process. If a patient chooses to remain in a hospital for more than 24 hours after authorization for admission to a long-term care home is granted and the patient is discharged by the hospital, the hospital must charge the patient a fee of $400 for each additional day they remain.
For more details about the More Beds, Better Care Act, including the criteria that placement co-ordinators must consider when determining an ALC patient’s eligibility for admission to a long-term care home, refer to our previous bulletin: Transitioning Patients from Hospitals to Long-Term Care: Ontario’s More Beds, Better Care Act.
The Charter Challenge
In April 2023, the Ontario Health Coalition and the Advocacy Centre for the Elderly filed an application with the Ontario Superior Court of Justice challenging Bill 7 on the basis that it contravenes the Canadian Charter of Rights and Freedoms.
Specifically, the applicants argued that Bill 7 contravenes section 7 of the Charter because it limits ALC patients’ right to life, liberty and security of the person and such limitations are not in accordance with the principles of fundamental justice. The applicants also argued that Bill 7 violates section 15 of the Charter because it discriminates against a specific group of patients, being those patients designated as ALC, on the basis of age and disability. The applicants claimed that Bill 7 deprives those patients of personal autonomy over their medical treatment and health care, ability to control access to their private health information, and ability to choose where they live.
The Court’s Decision
The Court dismissed the application in its entirety. The Court held that Bill 7 does not violate an ALC patient’s right to life because it does not prevent an ALC patient from obtaining access to necessary health care, nor does it prevent an ALC patient from remaining in a public hospital. Bill 7 only requires ALC patients who refuse an available bed in a long-term care home to pay for a portion of the cost of their care while they remain in the hospital. Similarly, the Court held that Bill 7 does not limit an ALC patient’s right to liberty or security of the person, since it does not impose fines or imprisonment, it does not compel an ALC patient to do or refrain from doing anything, and it does not authorize anyone to physically restrain or transfer a patient without their consent.
Notably, the Court’s decision reiterates that, in Ontario, there is no statutory or common law right to be admitted or to remain admitted in a hospital unless a responsible clinician is of the professional opinion that it is clinically necessary. Moreover, the Charter does not confer a right to publicly funded health care, much less a right to a certain level of health care spending or care in a specific setting. For these reasons, on the issue of the $400 per day charge to remain in hospital, the Court determined that such payment is not unlawful coercion or contrary to the Charter. The fee simply reflects the Ontario government’s decision regarding how to allocate health care dollars.
Ultimately, the Court was of the view that Bill 7 helps to achieve an important social objective, namely, conserving health care resources and making more hospital beds available faster. These benefits significantly outweigh any supposed interference with the constitutional rights of ALC patients.
The decision provides an important overview of the current challenges experienced by Ontario’s health care system, the provincial government’s efforts to respond through Bill 7, and evidence of Bill 7’s effect on the health sector since its coming into force. While the decision may be appealed, for the time being it solidifies this part of the provincial government’s current approach to preserving hospital capacity and ensuring that care is provided in the appropriate place.
