No-visitor policy challenged during COVID-19

As the COVID-19 pandemic has evolved, family members have been excluded from health care settings like never before.  Individuals with parents and children who are unable to make their own health care decisions, and in some cases unable to communicate, are effectively cut off from their loved ones.

While the motivation for visitor restrictions is well-intentioned, there have been some unintended consequences for patients and families with loved ones in hospitals, long-term care homes and other care settings.

One man decided to bring a lawsuit to challenge the no-visitor policy of a Toronto hospital.

The Case

A 77-year-old man was admitted to hospital in March 2020.  He had been living in long-term care but pulled out his feeding tube, which led to the hospital admission. He was unable to have any visitors because of policies relating to COVID-19.

The man’s son, who was also his attorney under a Power of Attorney for Personal Care, brought a lawsuit to challenge the hospital’s visitor restriction.  He was concerned because his father was elderly and mentally incapable of making his own decisions, that it was “unconstitutional to deprive him of in-person access to his substitute decision-maker”.

This is a concern shared by many families whose loved ones are uniquely vulnerable due to age and/or cognitive impairment.

Notably, the hospital’s no-visitor policy allowed for limited exceptions to permit essential visitors. However, the man’s son was not considered an essential visitor in the circumstances.

The son argued that the policy violated his father’s right to equality; his right to life, liberty and security of the person; and the right not to be subjected to any cruel and unusual treatment or punishment.

Ultimately, the Court decided that the hospital can take steps to “control access to its premises and to protect its patients and staff”.

The Court decided that the no-visitor policy made a distinction based on severity of the impact of the virus on the population and based on medical, scientific and epidemiological evidence, and this did not amount to discrimination. The Court added that it is appropriate to defer to the judgement of the hospitals since they possess the expertise and specialized knowledge to operate a hospital during a pandemic. Further, a substitute decision-maker is not required to be physically present in order to make medical decisions for a loved one. In other words, a member of the healthcare team could speak with the son via telephone  and obtain his informed consent to any proposed treatment for his father.

The case was complicated by other legal issues, but the takeaway for family caregivers is that not all decisions made by hospitals, or recommendations made by the Chief Medical Officer of Health for Ontario, will be subject to review by a court.

The case was heard virtually within a matter of weeks, which is almost unheard of in Ontario’s legal system. This tells us that the Courts are open to hearing urgent novel matters that are arise as we continue to navigate our new normal during the COVID -19 pandemic.

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