Ontario Urged to Suspend Need for Consent Before Withdrawing Life Support When COVID Crushes Hospitals


Sharon Kirkey, Postmedia News ([email protected])
Published: January 21, 2021

Dr. James Downar: Were talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole.

Canadas 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 familys 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 provinces 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 disturbing to disability advocacy groups, comes from Ontarios 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 over-arching 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 may live and who may die.

According to the document, prepared on behalf of Ontarios 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, liver disease, 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.

Its really important to be clear here this is not about how long youre likely to live, its not a life span question, said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. Its 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. Were 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, were 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 doesnt 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 its 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 Montreals McGill University Health Centre.

The Bioethics Tables 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, including borderline cases right up to the point that the critical care beds are literally full, he said. ICUs could run at full capacity. Only then, as new patients come in who meet the triage criteria a lower risk of death and who need beds would ICU care slowly start to be withdrawn from people who arent responding and are least likely to, 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.

Its 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 Ontarios COVID critical care command centre.

It would be a rare circumstance that we would have to resort to implementing a care plan that would not have the consent of the patient or substitute decision-maker, Frolic said.

Its not a life span question. Its your probability of being alive 12 months after developing critical illness

But should hospitals become maxed out, with a massive surge of people coming through the doors who have a very high chance of survival, and people in the ICU who arent benefitting from critical care and who are highly likely to die if we dont 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 cant 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 their critical illness, or weeks later. 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. The hope is that families will see whats happening around them. You can imagine if we get to this level of surge, there are patients in hallways; there are patients in gymnasiums. My hope is that families will see their own patient deteriorating but will see the context that were in a public health emergency, that its not personal, its not what we wish to do, its a situation caused by the pandemic.

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 likely, Shanouda said.

We dont know the process by which these decisions will be made, who will be making the decisions to withdraw care. Is there going to be an appeal procedure whereby a family can challenge that decision? Is there going to be accountability?

There are huge legal questions here and they need to be discussed in the open because we are talking about possibly taking an active action that could accelerate someones death, said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance (AODA).

If they were to amend the consent legislation, and if that were valid, and if it were constitutional and if it got around all the criminal law problems, what will that mean? It means if anybody goes to hospital and gets intensive care, they dont have any confidence theyre going to be able to stay there, Lepofsky said.

Theyve got to lie there knowing not only are they fighting for their life, but they are also aware that, at any time, a doctor could decide their chances arent so good, somebody coming in has got better chances, sorry, were pulling the plug on you.’

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Sharon Kirkey, Postmedia News ([email protected])

Published: a day ago
Updated: 15 hours ago

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Dr. James Downar: Were talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole.
Dr. James Downar: Were talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole.

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Canadas 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 familys 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 provinces 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 disturbing to disability advocacy groups, comes from Ontarios 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 over-arching objective, the document states, is to save the most lives in the most ethical manner possible.

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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 may live and who may die.

According to the document, prepared on behalf of Ontarios 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, liver disease, 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.

Its really important to be clear here this is not about how long youre likely to live, its not a life span question, said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. Its 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. Were 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, were 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 doesnt 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 its 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 Montreals McGill University Health Centre.

The Bioethics Tables 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, including borderline cases right up to the point that the critical care beds are literally full, he said. ICUs could run at full capacity. Only then, as new patients come in who meet the triage criteria a lower risk of death and who need beds would ICU care slowly start to be withdrawn from people who arent responding and are least likely to, 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.

Its 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 Ontarios COVID critical care command centre.

It would be a rare circumstance that we would have to resort to implementing a care plan that would not have the consent of the patient or substitute decision-maker, Frolic said.

Its not a life span question. Its your probability of being alive 12 months after developing critical illness

But should hospitals become maxed out, with a massive surge of people coming through the doors who have a very high chance of survival, and people in the ICU who arent benefitting from critical care and who are highly likely to die if we dont 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 cant 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 their critical illness, or weeks later. 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. The hope is that families will see whats happening around them. You can imagine if we get to this level of surge, there are patients in hallways; there are patients in gymnasiums. My hope is that families will see their own patient deteriorating but will see the context that were in a public health emergency, that its not personal, its not what we wish to do, its a situation caused by the pandemic.

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 likely, Shanouda said.

We dont know the process by which these decisions will be made, who will be making the decisions to withdraw care. Is there going to be an appeal procedure whereby a family can challenge that decision? Is there going to be accountability?

There are huge legal questions here and they need to be discussed in the open because we are talking about possibly taking an active action that could accelerate someones death, said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance (AODA).

If they were to amend the consent legislation, and if that were valid, and if it were constitutional and if it got around all the criminal law problems, what will that mean? It means if anybody goes to hospital and gets intensive care, they dont have any confidence theyre going to be able to stay there, Lepofsky said.

Theyve got to lie there knowing not only are they fighting for their life, but they are also aware that, at any time, a doctor could decide their chances arent so good, somebody coming in has got better chances, sorry, were pulling the plug on you.’

Email: [email protected]




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