If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield


Accessibility for Ontarians with Disabilities Act Alliance Update

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/

If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield

February 1, 2021

            SUMMARY

Is the Ford Government on the verge of trying to do a dangerous tap dance in a constitutional minefield? Imagine this scene: In the days ahead, a somber Premier Doug Ford appears at his televised COVID-19 news conference. His voice is very serious. His face looks terribly distressed.

“I must today announce a drastic measure that the COVID-19 emergency requires us to take,” he might say. “We have tried everything to avoid this for the past twelve months, and have taken every step short of this drastic new step I must announce today.”

Imagine him then announcing that his Cabinet has passed some sort of executive order or regulation that temporarily suspends Ontario’s Health Care Consent Act. That legislation forbids a doctor from withdrawing life-saving medical care from a patient, without the consent of the patient or, if incapacitated, their substitute decision-maker. It provides a process for the Consent and Capacity Board CCB to be engaged in case of a dispute.

One could imagine Premier Ford saying that the Government does not want to do this, but it was recommended by its Bioethics Table, a panel of medical and bioethics experts. “We have no choice.”

The AODA Alliance wants to be 100% clear that as far as we know, the Government has not yet done this. We and, no doubt, the Government all hope it does not happen. However, we must now turn our minds to this possibility. This is because the January 21, 2021 reported that the Ford Government’s external advisory Bioethics Table recommended to the Government that it should take just such a step. The article was entitled “Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals.” Neither the Government nor the Bioethics Table has denied this report, to our knowledge.

Whether or not such an order or regulation is a good thing to do, there is ample reason to seriously question whether it is something the Ford Government can do at present, by Cabinet simply passing some sort of regulation or executive order. In This AODA Alliance Update, we explain why. The ARCH Disability Law Centre released a public statement on January 28, 2021 which raises serious concerns, based on its expertise in disability law.

The Ford Government is not discussing this issue in public. Whatever it is discussing, it is taking place behind closed doors.

Issues we raise in this Update will be a matter of serious concern both for patients and doctors. Doctors’ well-known Hippocratic oath is absolutely central to their professional and ethical duties and their sense of mission. That oath requires every doctor to swear or affirm, among other things, that they will “do no harm”. How can a doctor be faithful to that oath if they were to actively withdraw life-saving critical medical care from a patient who needs that care and who has not consented to its being withdrawn?

We call on the Government to immediately end its protracted secrecy on this issue, and on the overall topic of critical care triage. These topics, and the Government’s plans, must be fully discussed and debated publicly. The Government should come clean on whether it is considering the possibility of trying to override or suspend the Health Care Consent Act. Most important, the Government should now categorically state that it will not try to suspend or override that important law, in whole or in part.

We should not have such a drastic step as this sprung on us and all Ontarians at the last minute, by a somber announcement such as that imagined above, and with an emergency used as an excuse for months of unwarranted Government secrecy.

            MORE DETAILS

 1. How This Might Work in Practice

What could it mean to seriously ill patients in hospital and their families if the Ford Government took the drastic action we address in this Update? Imagine a seriously ill patient who needs life-saving critical care in a hospital. Imagine that they are admitted to an Intensive Care Unit and begin receiving critical care. However, the COVID-19 pandemic keeps straining our hospitals, so much that the Ford Government decides that there are more critical care patients than there is capacity in hospitals to handle. Government decides that critical care bed, ventilators and services must be rationed or triaged. Under the January 13, 2021 triage protocol which the Government sent to Ontario hospitals to direct how such triage would happen, doctors would choose who, in the lineup for critical care, would be admitted to critical care. Some would be told there is no room. That is quite likely a death sentence for those who are not admitted. That would be bad enough.

However, it would be even worse if doctors could also evict a patient from their spot in critical care, partway through their treatment, to make room so another patient could be admitted whom the doctors feel has a better chance of surviving. Although it is in some ways unclear on this, the January 13, 2021 triage protocol may not direct hospitals generally to evict critical care patients in such situations from critical care. We wrote Health Minister Christine Elliott on January 18, 2021 to ask for this to be clarified. As with all our letters to her on the triage topic, she has not answered.

According to the January 21, 2021 edition of the National Post, the Government’s advisory Bioethics Table has recommended that the Ford Government act even more drastically than the January 13, 2021 triage protocol. They have reportedly recommended that the Government pass some sort of order or regulation to give doctors the power to withdraw critical care from a patient who is in the middle of receiving it and who needs it, as part of critical care triage. It is to that possibility that we are turning attention here.

As stated above, the Government has not said that it has implemented the Bioethics Table’s drastic recommendation on this. That gives us no comfort, because the Government has said very little about the entire topic of critical care triage. What it has said at all about critical care triage has, at times, been of questionable candor and accuracy.

How might this situation play out in a hospital? If the Ford Government passed some sort of regulation or executive order, as the Bioethics Table recommended, to suspend the Health Care Consent Act, and if critical care triage is directed to take place, doctors in a hospital might look at a critical care patient (We’ll call him Tom) who is already receiving critical care. The doctors might decide that Tom has less than a year to live and that his chances don’t look good. The doctors might then look at those patients in the lineup to get into critical care, and conclude that one or of them (We’ll call her Betty) has a better chance of surviving a year or more.

The doctors would be able to withdraw the critical care, already in progress for Tom, and transfer that critical care to Betty. Betty would get Tom’s critical care bed, ventilator and services instead of Tom. The proverbial plug could be pulled on Tom, without his consent or the consent of his substitute decision-maker.

We do not here explore how exactly the doctors would compare or evaluate Tom’s and Betty’s likely chances of survival. We do note that in The January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

“What’s different now is we have to essentially guesstimate what would happen a year from now.”

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…”

Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

“… so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise…”

To be extremely fair, we emphasize that Dr. Warner was not asked to discuss the situation if the Government took the drastic step of trying to override the Health Care Consent Act. Nevertheless, his concerns, quoted above, would seem to us to apply equally to such a drastic situation.

If doctors could unilaterally pull the plug on an existing critical care patient like Tom, over their objection, no patient in an Intensive Care Unit could feel safe that they won’t be evicted at some point, to make room for someone else, before it would be medically appropriate to stop giving them critical care they need. Under the January 13, 2021 triage protocol, any patient needing critical care who would be denied critical care would still be offered medical care, but it would be something less than the life-saving care one gets in critical care.

 2. Recklessly Tap-Dancing in a Constitutional Minefield

What is the constitutional minefield that this would create? It has many layers.

If Tom, the evicted critical care patient, dies as a result, it would not be surprising for his family to consider suing the doctor, the hospital and the Ford Government for this death. We cannot and absolutely don’t here offer legal advice to anyone. However, we can foresee some of the arguments that might be made on Tom’s behalf.

To defend themselves, the doctor and hospital could be expected to point to the Government’s January 13, 2021 triage protocol and say they were following this direction. As for withdrawing critical care from Tom, a patient who is in the middle of receiving critical care, the doctor, hospital and Government could also be expected to point to any regulation or executive order that the Government might pass in an attempt to suspend the Health Care Consent Act, and say that they were following it when they took away critical care from Tom, over his objection.

We now arrive at the constitutional minefield. Here are just some of the points that Tom’s family might present. A court would have to rule on these arguments and the responses or defences that the doctor, hospital and/or Government might present. Each of these arguments, if successful, might be sufficient to knock out the defence.

  1. Tom’s family might well argue that the Government cannot give directions on who lives and who dies during critical care triage by simply sending hospitals a memo, which is all the January 13, 2021 triage protocol is. The Government would have to show that those sending the memo had the legal mandate to make such decisions and give such life-and-death directions by simply sending a memo like the January 13, 2021 triage protocol.
  1. If the Ford Government did not approve the January 13, 2021 triage protocol, Tom’s family might argue that the Government has an even more uphill argument if it wants to argue that the January 13, 2021 triage protocol was somehow authorized by law. This is because the Ford Government had told media that it did not approve the January 13, 2021 triage protocol. This is so even though it states in the document that it was approved by the Ontario Critical Care COVID Command Centre. It was the Ford Government that set up the Ontario Critical Care COVID Command Centre.
  1. If Cabinet passed a regulation or order suspending the Health Care Consent Act, Tom’s family can be expected to argue that the Ford Government’s Cabinet did not have the power to make such a regulation or executive order. To make a regulation or like order, it would be practically necessary for the Government, the doctors and/or the hospital to show that the Legislature gave Cabinet the power to pass such a regulation or order.

Tom’s family might argue that a piece of legislation, supposedly conferring this power on Cabinet, is itself unconstitutional. If so, then Cabinet cannot use it to override the Health Care Consent Act.

If that argument fails, Tom’s family could argue that the piece of legislation supposedly conferring that power on Cabinet, should be interpreted narrowly, and that so interpreted, it did not authorize the Cabinet to make the regulation or order on which the Government, doctors and hospital rely.

This can be a complicated legal issue. We do not here review the legislative options that the Government might try to rely on to authorize such a regulation or executive order. However, Tom’s family could be expected to argue that the Legislature cannot simply give Cabinet carte blanche to pass any regulation it wants on any topic it wants.

Among other things, Tom’s family could urge the Court to interprete narrowly any legislation that gives Cabinet power to make regulations and orders. They could well argue that before a court agrees that legislation gives Cabinet the power to pass a drastic relation or issue a drastic order that suspends the Health Care Consent Act or that otherwise infringes Tom’s constitutional rights guaranteed by the Charter of Rights, that legislation must make it clear that the Legislature meant to give Cabinet such a drastic power. Tom’s family can also be expected to argue that any legislation, supposedly giving Cabinet such power, should be interpreted strictly and restrictively. The Legislature should not be able to pass the buck to Cabinet on so serious a topic. The Legislature must debate issues in public, with the Opposition present and participating. In sharp contrast, the Cabinet meets in secret, with no Opposition present.

Put another way, Tom’s family could argue that when a court interpretes legislation that gives power to Cabinet to make regulations, it should be presumed that this did not include a power to infringe the constitutional rights of medical patients, guaranteed by the Canadian Charter of Rights and Freedoms, or other basic rights to consent to medical decisions about their own health care, unless the Legislature said so in the clearest of language. For example, the family might well be expected to argue that the Legislature did not intend to delegate to Cabinet the power to grant exemptions from the Health Care Consent Act, if this will involve discrimination against patients with disabilities. The AODA Alliance and the ARCH Disability Law Centre have shown how the January 13, 2021 triage protocol presents the danger of disability discrimination. All that the Government’s defenders who have spoken in public have said in its defence is to say that the January 13, 2021 triage protocol states that doctors should not discriminate based on grounds like disability. However, that protocol goes on to tell doctors to use the Clinical Frailty Scale for some patients, when deciding if they should be refused or evicted from critical care. We have shown that this Scale is replete with disability discrimination. The protocol’s earlier statement to doctors not to discriminate based on disability does not cure or reduce the Clinical frailty Scale’s disability discrimination.

As well, the January 13, 2021 triage protocol does not provide a critical care patient with any due process, such as a right of appeal, if doctors decide to refuse them critical care, or to evict a critical care patient from the Intensive Care Unit. Tom’s family could well try to argue that the Legislature should not be taken as giving Cabinet the power to suspend the Health Care Consent Act without any due process for patients, unless the Legislature said so very explicitly.

Similarly, Tom’s family can be expected to argue that a court should be very reluctant to interprete legislation as giving Cabinet the power to make a regulation or other order that endangers a medical patient’s right to life, which is spelled out in section 7 of the Charter of Rights. Tom’s family may contend that this right is at stake when talking about refusing a patient critical care they need, or unplugging them from critical care they need and are already receiving.

  1. If any of those arguments by Tom’s family succeed, then the doctors, hospital and Government could be in hot water. There is even more to this minefield, even if it were assumed that those arguments by Tom’s patient’s family might not succeed.

Tom’s family could try to argue that Cabinet’s regulation or order or the doctors or hospitals actions under them and under the January 13, 2021 triage protocol nevertheless violate tom’s constitutional rights under the Charter of Rights. They would want to argue that in Eldrige v. B.C., Canada’s leading ruling on the Charter’s guarantee of equality to people with disabilities, the Supreme Court of Canada said that a patient can invoke the Charter to challenge the delivery of health care services in a hospital (there, the failure to provide a Sign Language interpreter to a deaf emergency room patient).

For example, Tom’s family could try to argue that the treatment of Tom by the doctors, hospital and/or the Government included disability discrimination contrary to Charter s. 15 (equality without discrimination on grounds like disability) and/or it denied the patient fair procedure in the triage process as guaranteed by Charter s. 7. (The right to not be deprived of one’s life without fulfilling the principles of fundamental justice). If a court was persuaded that any of these Charter rights were violated, the Government might try to argue that Charter s. 1 saves the day for them. Section 1 of the Charter provides:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Government would have to argue that a suspension of the Health Care Consent Act was justified due to the COVID-19 emergency. However, there are many arguments that the courts will have to consider. It will not be an easy task. It is the Government that must prove that s. 1 justifies government action.

Tom’s family might argue that by February 2021, this emergency was neither sudden nor unexpected. The COVID-19 pandemic had raged for almost a year. The Government knew in February 2020 that it should prepare for the eventuality of critical care triage. Yet as the AODA Alliance website amply shows, the Government has refused to embark on a proper public debate and discussion of this issue. It has dealt with it via secret triage protocols, closed door meetings, and a protracted failure to directly consult the public (including people with disabilities).

We and others repeatedly alerted the Government to the pitfalls in its triage planning, sought a chance to deal directly with the Government, and offered constructive solutions. This is an eventuality for which the Government could have been prepared with less drastic measures, had it properly planned for it.

  1. Even if it were assumed that Tom’s family failed on each and every one of the preceding arguments, still more dangers await the Government in this constitutional minefield. Tom’s family might be expected to argue that Ontario cannot authorize a doctor or hospital to withdraw critical care from a patient who needs it and who is receiving it, over the objection of the patient or their substitute decision-maker, without running afoul of the Criminal Code’s provisions on culpable homicide. His family may choose to argue that under Canada’s Constitution, it is Canada’s Parliament, and not a provincial Legislature or Government, that decides what constitutes a criminal homicide. If unplugging a patient from a ventilator or otherwise evicting them from critical care that they need without their consent is criminal conduct in some situations, Tom’s family may argue that Ontario’s Legislature, Cabinet or Government cannot legalize it.

 3. There are Ready Solutions Open to the Ford Government

What is the solution to this minefield in which Premier Doug Ford could soon find himself dangerously tap-dancing? It includes steps like these:

  1. Stop dealing with the critical care triage issue in secret, behind closed doors. Immediately embark on a public discussion of it. Don’t continue to hide behind the Government-appointed external, advisory Bioethics Table. Stop using that group as human shields. Talk directly to those of us in society, like disability advocates, who have ideas to share. Answer our seven unanswered letters on the critical care triage topic.
  1. Take off the table the option of suspending the Health Care Consent Act and letting doctors withdraw life-saving critical care from a patient who needs it and is receiving it.
  1. Ensure that whatever the Government does in this area will be properly authorized by legislation. If legislation is needed, this should be immediately introduced into the Legislature for debate. Public hearings should be held. It should not be rammed through without a proper chance for public input.
  1. Ensure that whatever the Government does regarding triage is fully constitutional. Don’t put families in the position of having to fight the Government after the fact, and after the devastating trauma of having to lose a family member.
  1. Implement an immediate, public, aggressive strategy to reallocate enough health care workers to ensure that Ontario has enough capacity to deliver effective critical care to all who need it, even in the face of further surges in demand due to COVID-19. That could eliminate any need for triage of critical care.

The AODA Alliance is standing by and ready to help.

4. Learn More About Ontario’s Controversial Critical care Triage Issue

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web 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.



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