Ontario College of Physicians and Surgeons Creates More Confusion for Doctors and Patients, and Doesn’t Answer Key Questions About Disability Discrimination in Ontario Critical Care Triage Protocol


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: https://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

April 13, 2021

SUMMARY

Yet More Confusion Swirls Around Ontario’s Plans for Critical Care Triage

What on earth is really going on in the back rooms of the Ford Government to prepare for the terrifying possibility that Ontario hospitals may have to ration or “triage” life-saving critical care, if too many patients need critical care in order to stay alive? We are deeply indebted to our front-line health care professionals for their exhausting, hard work in the face of the current pandemic. However, we have real concerns about what is happening within the Ontario Government and the College of Physicians and Surgeons of Ontario CPSO (which regulates Ontario physicians).

From the January 23, 2021 webinar that was provided to train front-line doctors and hospitals for critical care triage, we discovered that the Ford Government has been in direct discussions with the health care sector, including with the insurance companies that insure hospitals and physicians for lawsuits for negligence and malpractice. We understand that the insurance company’s aim is to secure the maximum protection for doctors. Speaking for the Canadian Medical Protective Association (the insurance that covers physicians), Dr. Steven Bellemare said:

” And be aware that the CMPA is always working with governments and with HIROC which is the insurance company for the hospitals, about this issue. We’re in constant communication. We make representations on your behalf to make sure that if and when this goes into place, you’ll have the best protections possible.”

Last Friday, we learned the disturbing news that the CPSO had sent a mass email to all Ontario doctors. It appeared to give them the green light to use the disability-discriminatory Ontario critical care triage protocol, if the Government directs them that triage must occur. We agree that there should be a critical care triage protocol. However we object to any critical care triage protocol that discriminates based on disability. A triage protocol must be properly authorized by law and must be constitutional.

As we announced in the April 9, 2021 AODA Alliance Update, we immediately wrote the CPSO to raise serious concerns about its mass email. On Monday, April 12, 2021, we received a response from the CPSO. We set it out below. It does not allay any of our concerns. If anything, it creates more confusion for us, for the public and for physicians. We explained this in a follow-up letter we just sent to the CPSO. (Also set out below)

This again shows what we have been saying for months: Doctors who would follow the disability-discriminatory Ontario critical care triage protocol would do so at their peril. That protocol cannot be found on the Ford Government’s website, but you can find it on the AODA Alliance website!

Let’s put this picture together, from the perspective of the public, including patients with disabilities. The Ford Government is evidently considering the possibility of agreeing in advance to indemnify doctors who ration or triage critical care, using the controversial and seriously-flawed Ontario critical care triage protocol. If the Ford Government does this, and if a patient is denied critical care they need in accordance with the Ontario critical Care triage protocol, and dies as a result, the Government would pay claims made against the doctor. That would be a huge public subsidy or corporate welfare for the physicians’ insurance company, at the taxpayers’ expense.

At the same time, the CPSO is signaling doctors that it supports their using the Ontario critical care triage protocol, if triage is directed, even though we, other disability advocates and the Ontario Human Rights Commission raised serious disability discrimination objections to it. The CPSO is supposed to fairly and impartially rule on complaints that patients or their families make against physician misconduct, without prejudging issues in advance.

Taken together, this means that the signal to doctors from the Government and the CPSO would be this: Don’t worry about being sued or about a complaint against you being filed with the CPSO, if you use the Ontario critical care triage protocol. You have the maximum protection for any accountability. No one should get such carte blanche and such a blank cheque in advance, especially when deciding who lives and who dies.

The Ford Government appears to be in regular contact with the doctors’ insurance company. However the Health Ministry won’t talk to us or even answer our letters on critical care triage.

For more background
1. The AODA Alliance’s February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.

2. Ontario’s January 13, 2021 triage protocol.

3. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance’s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.

5. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

MORE DETAILS

April 12, 2021 Email from College of Physicians and Surgeons of Ontario to AODA Alliance

Dear Mr. Lepofsky,

Thank you very much for your letter and taking the time to share your concerns with us. As Director of Policy here at CPSO, I’m responding on behalf of Dr. Whitmore (cc’d).

As I’m sure you can imagine, this is an extremely challenging time for all involved and we sent a message to the profession late last week in an effort to acknowledge and support the work of physicians as they face the realities of practice in a pandemic head on. While CPSO has had the opportunity to provide some input into the development of the critical care triage tool, we are not ultimately responsible for deciding it’s final structure, how it will be used, or even whether it will be implemented. Of particular note, we are not able to and have been clear that we cannot grant physicians permission to withdraw life-sustaining treatment that is already being provided and that provincial level decisions would be needed to enable this practice should it ever reach that point. The letter we sent to physicians last week and the information we have communicated on our website was something we felt was very necessary, given the escalating trajectory of the pandemic and how quickly our system is being overwhelmed.

This is a difficult time for everyone for patients, for families, for physicians, and for all other health care providers and we know that no one wants to reach a point where making these types of allocation decisions is necessary. Our role is to serve the public interest and with the tremendous threat to our capacity to treat all patients requiring critical care resources looming, it was essential that we take the steps needed to ensure physicians know that we recognize the unprecedented challenges they may soon face so that they can support the system wide response needed to help save as many lives as possible and protect the public interest. We will continue to watch and respond to the evolving nature of the pandemic, with the hope that the measures being taken are sufficient to reduce the pressure on our critical care divisions.

Thank you again for your letter.

Best regards,

Craig Roxborough, PhD (he/him)
Director | Policy
College of Physicians and Surgeons of Ontario
80 College Street | Toronto, Ontario | M5G 2E2
T: 416-967-2600 | 1-800-268-7096 ext. 339
www.cpso.on.ca
TRUSTED DOCTORS PROVIDING GREAT CARE

April 13, 2021 AODA Alliance Letter to the College of Physicians and Surgeons of Ontario

Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Society for All People with Disabilities
Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

April 13, 2021

Dr. Nancy Whitmore, Registrar and CEO
Via email: [email protected]; [email protected]

College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

Dear Dr. Whitmore,

Re: Possibility of Rationing or Triage of Critical Care in Ontario

We are responding to the April 12, 2021 letter we received from Craig Roxborough, Director of Policy for the College of Physicians and Surgeons of Ontario (CPSO). He responded on your behalf to our April 9, 2021 letter to you, where we raised serious concerns about a mass email that the CPSO evidently sent all Ontario physicians last week. That mass email gave the CPSO’s approval to doctors using the Ontario critical care triage protocol, if rationing or triage of life-saving critical care becomes necessary due to hospital overloads.

We regret that Dr. Roxborough’s letter did not answer key questions and concerns we presented in our April 9, 2021 letter to you. For the benefit of the public who can become critical care patients, and the physicians whom the CPSO regulates, it is important for those questions to be answered and those concerns to be addressed. Otherwise, both Ontario physicians and the public will be left in confusion at a time when clarity from the CPSO is especially important.

We asked you if the text we set out in our April 9, 20921 letter to you is an accurate quotation of what the CPSO sent to all Ontario physicians last week about the critical care triage issue. Dr. Roxborough did not answer. We will proceed on the basis that it is accurate, unless you tell us otherwise.

Dr. Roxborough indicated that the CPSO’s email to all Ontario physicians last week was sent “in an effort to acknowledge and support the work of physicians as they face the realities of practice in a pandemic head on” and “to ensure physicians know that we recognize the unprecedented challenges they may soon face so that they can support the system wide response needed to help save as many lives as possible and protect the public interest.” However, the CPSO’s email to all Ontario physicians last week went much further than simply assuring physicians that the CPSO acknowledges and supports their work during the pandemic and recognizes the unprecedented challenges they may face.

The CPSO’s email to all doctors explicitly and categorically gives them the green light to act in accordance with the Ontario critical care triage protocol. That mass email asked this direct question:

“If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?”

The CPSO email to all Ontario physicians gives this clear and categorical answer to that question:

“Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols.”

Beyond that, our April 9, 2021 letter to you explained that we, the Ontario Human Rights Commission and others have raised serious disability discrimination and other human rights objections with the Ontario critical care triage protocol. In the face of such concerns, it would be wrong for the CPSO to green light for physicians in advance the use of that protocol. In our April 9, 2021 letter to you, we asked to meet with the CPSO to discuss this. Dr. Roxborough’s April 12, 2021 response did not address or even acknowledge those concerns or that request. He did not respond to our request to meet with the CPSO about this.

As another concern, Dr. Roxborough’s April 12, 2021 letter to us suggests that the CPSO has been clear that it cannot grant physicians permission to withdraw life-saving critical care from a patient that is already being provided to a patient, and that this is for the Province to decide. His April 12, 2021 letter to us states:

“Of particular note, we are not able to and have been clear that we cannot grant physicians permission to withdraw life-sustaining treatment that is already being provided and that provincial level decisions would be needed to enable this practice should it ever reach that point.”

Yet adding to the confusion, Ontario physicians can get a very different impression from the email that the CPSO sent all physicians last week. That mass email appears to green light a physician’s withdrawal of life-saving critical care from a patient, if the Ontario Government legalizes it and if it is done in accordance with the Ontario critical care triage protocol. Once again, with our emphasis added, that mass email began with this question:

“If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?”

Later, that mass email makes it clear that if the province authorizes withdrawal of critical care from a patient, then the CPSO is green lighting a doctor doing so, so long as the physician follows the Ontario critical care triage protocol. Once again, the CPSO mass email states:

“While only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to re-allocate those resources to another patient, the College recognizes that issues concerning withholding potentially life-saving or life-sustaining treatments may also arise.

Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols.”

If the Ontario Government were to purport to amend legislation to permit a doctor to withdraw life-saving critical care from a patient without their consent, that does not automatically make such withdrawal of care over a patient’s objection lawful and appropriate. This is especially so, since there are serious problems of disability discrimination in the Ontario critical care triage protocol (among other serious problems). Should a physician withdraw life-saving critical care from a patient who does not consent to its withdrawal, and should the patient die as a result, the CPSO should not pre-judge in advance that just because the doctor acted in accordance with the Ontario critical care triage protocol, a complaint to the CPSO would be viewed unfavourably.

Dr. Roxborough’s April 12, 2021 letter to us did not answer our inquiry to you about what specific input, if any, the College has received regarding our disability concerns, and what input, if any, the College gave the Ontario Government about disability concerns with the critical care triage plans. We hope and trust that the CPSO would be willing to share that information, given your commitment to public accountability and the exceptional urgency of the critical care triage issue.

In sum, physicians and the public will be left in further confusion from Dr. Roxborough’s April 12, 2021 letter to us. This makes it all the more pressing for the CPSO to meet with us and other advocates from the disability community. We repeat that physicians who act pursuant to Ontario’s critical care triage plan and protocol do so at their peril.

We would very much welcome the opportunity to work with the CPSO to help ensure that its approach to this deeply troubling and difficult issue fully complies with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Please give us the chance to do so. If CPSO has not already done so, we strongly urge you to work directly with the Ontario Human Rights Commission on these concerns. The Commission is a fellow public agency with expertise in preventing and removing disability discrimination. It has been actively engaged in the critical care triage issue.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance Twitter: @davidlepofsky

cc:
Premier Doug Ford [email protected]
Christine Elliott, Minister of Health, [email protected] Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected]
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]
Craig Roxborough, Director of Policy, College of Physicians and Surgeons of Ontario Craig Roxborough [email protected]
Robert Lattanzio, Executive Director, ARCH Disability Law Centre [email protected]




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