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When no means yes: Laws that replace consent with coercion troubling trend

This article was originally published by The Lawyer’s Daily, (www.thelawyersdaily.ca) a division of LexisNexis Canada.

When no means yes: Laws that replace consent with coercion troubling trend

Wednesday, September 14, 2022 @ 11:29 AM | By  Anita Szigeti

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Anita Szigeti

Section 7 of the CanadianCharter of Rights and Freedoms protects Canadians’ right to life, liberty and security of the person and the right not to be deprived thereof other than in accordance with the principles of fundamental justice.

This constitutionally protected right includes the right to decide what happens to your body, including what medications you receive and where you live. Unless you’re a psychiatric patient in British Columbia, or more recently, a vulnerable senior in an Ontario hospital — or so these provincial governments would have us believe. Both have now enacted legislation that purports to authorize hospital staff to consent on behalf of otherwise capable patients to things they clearly do not want. Both are, on their face, constitutionally suspect pieces of legislation that are sure to come under judicial scrutiny. And both are very unlikely to survive.

On Aug. 31, 2022, Ontario’s Bill 7: More Beds, Better Care Act, 2022 received royal assent. As a result, at the moment it is the law that governs what happens to older adults in acute care hospitals who have been designated alternative level of care or “ALC” patients. These seniors are in hospital when they do not require acute medical care and could be discharged, if there was an appropriate place for them to go. Until two weeks ago, an appropriate place of discharge was one that was both available and the person agreed to go there or, if they were not able to make this decision for themselves, a duly appointed Substitute Decision Maker or “SDM” (usually a family member) consented for them. 

But somebody’s consent was required before they could be placed in a long-term care facility. Also before their personal medical and psychiatric health records they didn’t want shared were disclosed to a host of facilities they never want to live in.

Now, under Bill 7, all of that goes out the window. Instead, hospital staff can disclose personal health records to all kinds of strangers and authorize admission to facilities, all without consent. They are directed to use “reasonable efforts” to “obtain consent.” If the person agrees, great. If they refuse, the “placement co-ordinator” — an administrative staff person — can “authorize the ALC patient’s admission to a home.” In other words, in that event, “no” really does mean “yes”. While hospitals are not permitted to use physical force or restraint to actually transport the individual to the nursing home against their will, they can charge the full (uninsured) cost of the hospital bed directly to the patient. That cost has been reportedly as high as $1,800 a day or $54,000 a month. Imagine being told you’re going to be on the hook for that kind of money simply for exercising your constitutional right to refuse to be admitted to some care facility far from your home, away from your family or to a place you know is awful and adamantly don’t want to live in. It’s the height of coercion, masquerading as “more beds, better care.”

The previous legislative regime, by contrast, was constitutionally compliant. It required informed consent to a proposed nursing home placement, based on full information a reasonable person would need to make the decision, and that the consent be provided either by the capable individual or in accordance with rules prescribed for their SDM in Ontario’s Health Care Consent Act. The new legislation completely dispenses with the consent requirement. It is, on its face, a constitutionally invalid regime. It has an entire section (s. 60.1(3) of the Fixing Long Term Care Act, 2021 as amended by Bill 7) titled: “Certain Actions May Be Performed Without Consent”. You don’t see that very often in Canadian laws. Rightfully, and blissfully so. Because dispensing with consent to admission to a long-term care facility is just as blatantly unlawful as doing away with consent to the administration of treatment against a person’s will.

The only other place I’ve seen this is in B.C.’s Mental Health Act, which has a deemed consent provision (s. 31). It purports to override a treatment capable patient’s right to refuse the administration of powerful mind-altering psychiatric medications against the person’s will. The psychiatric facility’s director consents instead where a patient has refused. They, too, are supposed to seek your consent first. Again if you agree, that’s wonderful. And if you don’t, you are deemed to have consented anyway. No means yes.

In Maclaren v. British Columbia (Attorney General) [2018] B.C.J. No. 3387, an action was commenced by a number of individual plaintiffs and public interest litigants, challenging the constitutionality of the B.C. Mental Health Act’s deemed consent provisions. The action has yet to be determined on its merits, as the collateral issue of the test for public interest standing was only recently decided in favour of the Council of Canadians with Disabilities in the Supreme Court of Canada [Attorney General (British Columbia) v. Council of Canadians with Disabilities 2022 SCC 27]. The Supreme Court judgment clearly recognizes that the challenge to the deemed consent regime raises a serious justiciable issue. It also acknowledges the access to justice impediments to individuals directly affected by the impugned legislation to bring the constitutional challenge forward themselves, particularly while they are detained in psychiatric facilities and experiencing a mental health crisis.

The same considerations are expected to apply to Bill 7 and the prospect of a direct Charter challenge to it by ALC patients subjected to the new coercive “dispensed consent” regime. Imagine you’re an older adult in an acute care hospital, faced with the “choice” of acquiescing passively to the decision someone else made for you to go live in a home you rejected for good reason, or paying tens of thousands of dollars to stay in a hospital. In that moment, under enormous stress already, you are not likely going to retain counsel and launch an expensive and complex lawsuit.

Governments may well be counting on the extraordinary vulnerabilities of affected populations when enacting legislation that purports to do away with the constitutional right to refuse treatment or placement in a nursing home against your will and without lawful consent. But the AGBC v. CCD judgment from our Supreme Court is a game-changer in this context. Genuinely interested and appropriately representative public interest advocacy groups can now seek public interest standing and launch the much-needed challenges.

Immediately in the wake of Bill 7, the Advocacy Centre for the Elderly and Canadian Union of Public Employees (CUPE) have already called for the Ontario Human Rights Commission to launch a formal inquiry into systemic discrimination in the provision of health care in Ontario against the elderly based on age. A Charter challenge to the impugned provisions of Bill 7 is sure to follow.

Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on Twitter and on her blog.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, 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.

Photo credit / Svetlana Piatigorskaia STOCKPHOTO.COM

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Research Pod

Case(s):

Maclaren v. British Columbia (Attorney General) [2018] B.C.J. No. 3387

Attorney General (British Columbia) v. Council of Canadians with Disabilities 2022 SCC 27

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