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| Heather Campbell Pope |
One hot and humid August morning, we went to a local nursing home, putting distilled jugs in the supply closet for their medical equipment and taking the empties back to our truck.
It was an experience — and smell — that I have never forgotten. The building had no air conditioning. As I walked down the hallway, I tried to keep my eyes down but peeked up a few times and saw an elderly man sweltering in a diaper on his bed, a lonely woman on a chair in her room, staring out the window where one dead plant sat on the sill, and several motionless seniors slumped over in wheelchairs aimed at a television in the stifling common room.
About two decades later, I started my elder justice career at the Canadian Centre for Elder Law in Vancouver, inspired in part by what I witnessed that scorching day with my dad.
In 2013, I went to work for a continuing care industry association, essentially a lobbyist group for privately owned long-term care and home care providers. It was an opportunity to effect change from the inside. I also learned about the good work of some for-profit homes, like the then-family-run Delta View Habilitation Centre in British Columbia, where owner Jane Devji pioneered a “hugs not drugs” approach to dementia care.
About four years ago, I wrote in this space about the Devji family, in response to the federal NDP leader’s motion that called for the elimination of all for-profit long-term care homes by 2030.
“Understandably focused on the significant issues of chain ownership, the ideological insistence on ending for-profit care devalues the innovations of entrepreneurial families like the Devjis,” I argued.
The NDP motion to end for-profit long-term care in Canada failed, with 305 votes against and 28 in favour. All Liberal, Conservative and Bloc MPs voted against it.
Since that time, the progressive crusade against for-profit nursing homes has hit other bumps.
Most recently, in January, Ontario Superior Court Justice Robert Centa dismissed a Charter challenge against Bill 7, a law that requires hospitals in the province to charge patients $400 per day if they do not leave within 24 hours of being discharged and offered placement in a long-term care home, including ones they did not choose.
While the impugned law is not directly about ownership models, the litigation was strongly championed by advocates who want for-profit care homes shut down.
When Doug Ford’s government introduced Bill 7 in 2022, it ignited fury among some seniors advocates and families, with a main complaint being that older patients who no longer need acute care will likely end up in for-profit long-term care homes against their wishes. “Given that waiting lists are shortest in for-profit homes, under Bill 7 most patients are likely to end up in homes with the lowest staffing levels, the lowest quality of care and the most crowded facilities,” one expert witness testified.
Represented by outside counsel, the Charter case was brought by the formidable and trailblazing Advocacy Centre for the Elderly, a Toronto-based legal clinic operating since 1984, and the Ontario Health Coalition, a group that advocates for public health care, though as an unincorporated association, the judge did not grant it standing to advance its claim.
There were no individual claimants, which Justice Centa made clear would have been preferable so he could apply the law to an actual situation where a senior had been affected by the law.
In this factual vacuum, Justice Centa ruled that Bill 7 does not violate patients’ right to life, liberty and security of the person, nor does it discriminate on the basis of age and disability.
Importantly, he noted that the legislation does not authorize hospitals to physically transfer a patient to a long-term care home without their or their substitute decision-maker’s consent. No one is being dragged into a nursing home under Bill 7. It is a financial penalty, albeit a steep one, with some discharged patients racking up tens of thousands of dollars in costs for refusing to leave hospital when a long-term care bed becomes available.
To be sure, one wonders whether it is fair or humane to saddle seniors, most of whom have dementia or another cognitive impairment, with a potentially exorbitant and stressful hospital bill, in their final months of life.
It is also worrying that Bill 7 authorizes hospital placement co-ordinators to admit seniors to care homes far away from friends and family, hindering their ability to provide essential emotional and caregiving support, as it can be difficult for many older spouses and busy adult children to make frequent long trips due to transportation challenges or time constraints.
But whatever merit the constitutional challenge had, it was spoiled by the political nature of the litigation. Much of the evidence rallied against for-profit care homes and called for increased health-care funding, which Justice Centa found to be irrelevant to the constitutional question. He gave the partisan opinions little to no weight, with some factual witnesses making quasi-legal arguments and expert witnesses giving statements outside of their professional expertise.
The judge’s frustration was clear. “Partisan views are of no assistance to the court,” he wrote.
There is no question that the quality of care varies significantly among care homes. But as I wrote in 2021, “profit is not the inherent enemy; in the right conditions, it can be a strong and proper incentive that drives continuous improvement.” The Devji family-run home proved to be a leader in dementia care, for instance.
In a fashionable move among progressives, the Charter claimants also invoked rights that do not exist at law. “[T]here is no Charter right to health care,” Justice Centa bluntly observed.
The unsuccessful case reminds us that old age is not a trump card in court. Appeals to elder rights must be properly grounded in law, not sympathy, however well deserved. Otherwise, there is a paradoxical risk that their legal claims will be trivialized, hidden under emotions and policy-based grievances.
Charter claims must also consider the well-being of others, in this case seniors and younger folks who are languishing on stretchers in busy emergency department hallways and those waiting at home in pain for paramedics to arrive. Their situations must be reconciled with those who no longer need hospital-level care, not simply cast aside as a problem for another day.
Reasonable people can disagree about whether Bill 7 is the right way to address patient flow. The law might even raise valid Charter concerns. But in my view, future legal challenges must exercise greater ideological restraint by toning down anti-profit views that bury legitimate constitutional arguments in a partisan policy debate that is better dealt with at the polls.
Heather Campbell Pope, LL.B., LL.M., is founder of Dementia Justice Canada, a small nonprofit dedicated to safeguarding the rights and dignity of people with dementia.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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