COVID 19: New Case Law on Restricted Visitor Policies

On April 17, 2020, the Ontario Superior Court of Justice Divisional Court released its decision in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335 which upheld North York General Hospital’s (the “Hospital”) COVID-19 restricted visitor policy. While family visits and in-person communication would be preferred by patients, their families and hospitals alike, the Court recognized that the pandemic creates unique health risks and requires hospitals to consider alternatives to protect patients and continue to provide care. Importantly, the decision highlights that for patients that are deemed incapable and who have substitute decision-makers (“SDMs”), the physical presence of SDMs may not be required to make decisions regarding a patient’s medical treatment during a pandemic.[1]

This case is particularly important for agencies across the Developmental Services (DS) Sector that have been creating policies to keep their staff and the people they support safe, including restrictions on all non-essential visitors entering residences and group homes, in accordance with public health directives regarding COVID-19.

In the Sprague case, the Hospital had instituted a ‘no-visitor’ policy based on a memorandum sent to hospitals from the Chief Medical Officer of Health for Ontario (the “CMOH”) which recommended that only essential visitors be permitted in hospitals during COVID-19 to protect vulnerable patients and prevent outbreaks in hospitals. While the CMOH memorandum was also challenged (unsuccessfully), this blog focuses on the Court’s analysis of the Hospital’s no-visitor policy.

The Hospital’s policy indicated that as of March 20, 2020 no visitors would be allowed except on a case-by-case basis for patients “requiring end-of-life-care, labouring persons or patients under the age of 18.”[2] The policy applied to all non-essential visitors.

As a result of the policy, Mr. Sprague, an elderly patient at the Hospital, who had previously been deemed incapable as a result of a brain injury, was no longer able to see his son, his substitute decision-maker. The son challenged the Hospital’s policy on behalf of his father. The appellant son argued that the restrictions violated the Mr. Sprague’s Charter rights. Specifically, the appellant argued that the visitor restrictions violated Mr. Sprague’s section 7 (Life, Liberty and Security of the person), section 12 (Cruel and Unusual Punishment) and section 15 (Equality) rights.

Ultimately, the Court found that the Hospital’s visitor policy was substantiated by scientific and medical evidence and judgement and attracted significant deference given the Hospital’s expertise and specialized medical knowledge. The Court concluded that there had been no violation of any Charter rights. The decision recognizes that COVID-19 presents “challenging” times for hospitals which requires hospitals to use their professional judgement to respond to the health risks of the virus to their patients and staff. We know that very similar challenges are faced by DS sector agencies who support vulnerable residents in congregate settings.

Section 7 – Life, liberty, and Security of the Person

Although it was agreed by both parties that the no-visitor policy engaged Mr. Sprague’s security interests, the policy was not arbitrary or overbroad– it was reasonably linked to the Hospital’s objectives in limiting the spread and contraction of COVID-19 and contemplated certain reasonable exceptions (i.e. low risk patients and for limited, compassionate reasons).

Section 12 – Cruel and Unusual Punishment

The Court determined that the Hospital’s policy prohibiting non-essential visitors from entering the hospital, did not constitute a ‘punishment’ or unusual ‘treatment’ under section 12 of the Charter.

Section 15 – Equality

The Court found that the Hospital’s policy was not made on the basis of an enumerated or analogous ground as set out in the Charter (for example race, religion, disability, gender), nor did it perpetuate disadvantage faced by patients or visitors. The Court concluded that the policy was rationally connected to the purpose of reducing the spread of COVID-19, protecting patients – especially elderly patients – and preserving PPE for health professionals and was supported by medical knowledge. The visitor exceptions were also found not to be based on personal characteristics (such as age) but rather scientific evidence that children are at lower risk, and individuals over 65 are at a much greater risk of contracting COVID-19 and suffering from complications.

In summary, this decision is helpful in supporting DS sector policies that restrict non-essential visitors during this pandemic period, providing  a strong justification for implementing these types of policies.

PooranLaw will continue to monitor legal developments related to COVID-19. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.

[1] Sprague, para 41.

[2] Sprague, para 13.