What Happens to Elderly Patients already in Ontario Hospitals during the COVID-19 crisis?

The number of COVID-19 cases in Ontario is expected to grow exponentially in the coming days/weeks and hospitals across the Province are rushing to prepare for a huge influx of patients so what happens to the elderly who are already patients in Ontario hospitals? It has been widely documented that COVID-19 is more likely to cause severe and/or fatal illness in older persons and persons with pre-existing medical conditions.

Prior to the COVID-19 crisis, there were already thousands of patients in hospital who required care in a different setting such as long-term care. Many of these patients were older adults unable to return to their homes due to a lack of appropriate and sufficient care available in the home. Many were awaiting placement to long-term care homes where their care needs could hopefully be met.

So, what does this crisis mean for these elderly patients who are already in hospital?  Yesterday, CBC news reported that New Brunswick’s government sought to free up acute care beds by moving 65 seniors waiting for nursing home placement out of hospitals and into nursing homes within 100 km of their permanent addresses. The Premier announced that the move was intended to make way for an anticipated influx of COVID-19 patients.

Can the hospitals in Ontario follow in New Brunswick’s footsteps and transfer patients outside the hospital setting?

Practically speaking, in the middle of this crisis the hospitals and/or Ontario government may simply choose to do so.

Whether or not they are legally authorized to do so is a more complicated question that will depend on the circumstances of the elderly patient and a significant number of applicable laws including but not limited to the: Public Hospitals Act; Health Protection and Promotion Act; Emergency Management and Civil Protection Act; Regulated Health Professions Act; the Health Care Consent Act; as well the Ontario Health Plan for Influenza Pandemic 2013 (which was created to help the provincial health system to prepare for and respond to an influenza pandemic).

Physicians continue to owe their elderly patients a duty of care, which includes a safe discharge from the hospital. In cases where patients have been found eligible and are awaiting admission to long-term care, they can be designated as a crisis admission and be placed more quickly, provided that the home has beds available. However, the individual applicant or his or her substitute decision-maker must consent to the admission to the specific home. The Long-Term Care Homes Act which regulates the admissions process sets out the requirements of applicant choice and informed consent.

In the normal course of things, if a patient is told that he or she would be transferred to a long-term care home not selected, a complaint could be launched to the Ministry of Health and Long Term Care,  the Local Health Integration Network (LHIN), and the Ontario Patient Ombudsman to prevent the transfer. A court application for injunctive relief could also be brought; however, courts have currently suspended all regular operations. Given these novel circumstances, it is not clear whether such an application would even get before a judge in time to stop a transfer or how a judge would decide such a case.

Given the COVID-19 crisis, we have to consider whether the measures taken in New Brunswick are legally justifiable in the circumstances and whether public health considerations outweigh patient rights.  Care facilities must also be aware of the potential risks associated with taking on patients who may have care needs beyond the scope of care that they are able to provide.

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