National Post (National Edition)
COVID-1 9
PROVINCES WRESTLE WITH WHO SHOULD GET CARE IF COVID OVERWHELMS.
Canada's Supreme Court ruled in 2013 that a major Toronto Hospital could not withdraw life-support from a minimally conscious and severely brain-damaged man without his family's consent.
Now, in another sign of these extraordinary times, the Ontario government is being asked to temporarily suspend the law requiring doctors get consent of patients or families before withdrawing a ventilator or other life-sustaining treatment from people facing a grim prognosis, should COVID-19 crush hospitals.
The recommendation for an Executive Order to suspend the province's Health Care Consent Act for withdrawal of treatment in the ICU, should the situation become so dire, comes as Ontario, Quebec and other provinces prepare protocols to determine who should get critical care — and who should be left behind — if hospitals are flooded with COVID patients.
The request, deeply troubling to some advocacy groups, comes from Ontario's COVID-19 Bioethics Table, which is recommending that the province ensure “liability protection for all those who would be involved in implementing the Proposed Framework … including an Emergency Order related to any aspect requiring a deviation for the Health Care Consent Act.” The act requires doctors obtain agreement from patients, or their substitute decision-makers, with disputes resolved by the Consent and Capacity Board, an independent tribunal.
This week, the Ontario Critical Care COVID Command Centre issued an “emergency standard of care” to prepare hospitals for the worst-case scenario, an Italy-like surge in demand for critical care. The overarching objective, the document states, is to “save the most lives in the most ethical manner possible.”
A critical-care triage should be considered an option of last resort, invoked only after all reasonable attempts have been made to move people to other hospitals where there is space and staff to care for them, and only for as long as the surge lasts, the document says.
The goal is to minimize deaths, minimize the risk of discrimination and “unconscious bias” against people with disabilities, racialized communities and other vulnerable groups, and minimize “moral injury and burnout” among staff forced to decide who will die and who lives.
According to the document, prepared on behalf of Ontario's critical care COVID command centre, priority should be given to people with the greatest likelihood of surviving whatever it is that brought them to hospital — COVID-19, heart attack, a bleed in the brain or other life-threatening illness. Those with a high likelihood of dying within 12 months from that critical sickness would receive lower priority for an ICU bed.
“It's really important to be clear here — this is not about how long you're likely to live, it's not a lifespan question,” said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. “It's your probability of being alive 12 months after developing critical illness.”
The protocol is meant to be applied to new patients, or people already in hospital whose condition is worsening. “We're suggesting, out of a principle of fairness, the same approach should apply to people inside the ICU,” Downar said. “It would be unfair to treat people differently depending on the timing that they presented.”
“Nobody likes the idea of ever withdrawing life-support on somebody without their permission, without their consent,” Downar said. “But in a triage scenario, we're talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole, and trying to maximize the number of people who will survive an overwhelming surge.”
The document now being circulated to Ontario hospitals doesn't include a provision for withdrawal of potentially life-sustaining treatment without consent. Instead, it says that ICU doctors should regularly reassess people admitted to ICU, and consider withdrawal of life support “through a shared decision-making process with SDMs (substitute decision-makers) if a patient does not appear to be improving.”
But Downar and other doctors said it's not possible to operate a triage model in which all decisions are made with the consent and permission of people involved, because many people would simply opt out.
“We are going to say, `by the way, we are taking your family member off the ventilator in lieu of another patient who we feel has a better prognosis, given this pandemic condition. Do you agree?' I think that if we did that we would not get consent. Nobody is going to give us consent,” said Dr. Peter Goldberg, head of critical care at the McGill University Health Centre.
The Bioethics Table's request is now before the Ontario Health Ministry. “We are hopeful that, as part of the state of emergency, should we need it, that there will be an executive order allowing us to withdraw,” Downar said
With an Executive Order in place, doctors could put off escalating triage and continue to offer intensive care to every person who might benefit — “right up to the point that the critical care beds are literally full,” he said. ICUs could run at full capacity. “And then we only start withdrawing and limiting critical care to the absolute degree necessary,” Downar said.
Without the Executive Order, triage would have to be started sooner, in order to reserve beds for people with a high likelihood of survival. Fewer people would be offered intensive care, and more people would die, Downar said.
“It's difficult to imagine how troubling that would be, that we would actually have to suspend the consent act,” said Dr. Andrea Frolic, director of the Program for Ethics and Care Ecologies at Hamilton Health Sciences and a consultant to Ontario's COVID critical care command centre.
But should hospitals become maxed out, and people in the ICU who aren't benefiting from critical care and who are highly likely to die — “if we don't have the tool to provide equitable access to care, that will create a lot of distress on the system,” Frolic said.
It becomes a first-come, first-served system, she said — a car crash victim who needs surgery and a short ICU stay to save his life can't get into the ICU, because he arrived after a person with end-stage cancer and COVID-related pneumonia who may not be likely to survive the critical illness. “That is a situation of inequity caused by fate, really, or chance. One person happened to get critically ill before another person.”
Withdrawing treatment without consent would be very rare, happen only after every effort to reach consensus with the patient and family has been exhausted, and only as a last resort, Frolic added.
Families who feel strongly could use all avenues of advocacy, she said.
Mariam Shanouda, a lawyer at ARCH Disability Law Centre in Toronto, said she was “flabbergasted” when told by the National Post about the prospect of an order to allow doctors to operate outside the consent act.
“This is literally life and death and to not only give doctors that power to operate outside (the act) but to insulate them from any liability whatsoever, that is not something to be taken lightly,” Shanouda said.
IT'S DIFFICULT TO IMAGINE HOW TROUBLING THAT WOULD BE.