Published on April 10, 2020, JURIST
Charles I.M. Lugosi
Edited by: Megan McKee
The Crisis
The COVID-19 pandemic and the fact that insufficient resources exist to combat the likely tidal wave of hospital admissions will force unprecedented decisions to be made in Canada. This article recommends bioethical and legal guidelines intended to assist those responsible for the allocation of ICU beds and mechanical ventilators. Whether or not to admit a patient to the ICU and initiate mechanical ventilation is a life or death decision and a responsibility that must be met with thought and care.
The Bioethical Guidelines
The first step is to decide whether mechanical ventilation is medically indicated. Even before a patient takes a downward turn necessitating ICU admission and ventilation, however, a list of patients suitable for ICU admission should be prepared using objective criteria and a system that awards points on a scale of one to nine, to minimize the prospect of a tie between patients.
A list of suggested factors that might inform the criteria includes: patient wishes; the patient’s advance care directives; the patient’s instructions regarding medical assistance in dying; whether the patient has elevated co-morbid conditions, such as class IV heart failure, severe chronic lung disease, end-stage renal disease, severe cognitive impairment, the impairment of other organs and systems and their reversibility; the severity of the disease; the functional status of the patient; whether the patient has essential responsibilities to saving lives of others; and, whether the patient performs tasks vital or essential to the health or welfare of society.
When a patient is chosen for ventilation, the patient must be informed that the treatment is on a time-limited trial basis, subject to re-evaluation after a reasonable period, to assess whether or not there is a benefit to continuing the treatment. This sets appropriate expectations and permits the withdrawal of the ventilator when further treatment would be futile.
An independent Bioethics Committee of at least three individuals should make the rounds, investigate the background and condition of each patient, and have the specific responsibility of making these very difficult triage decisions.
Physicians and nurses must not make these decisions, as their role is to “do no harm” to their patients. Their role must remain as fiduciary advocates, who speak on behalf of their patients who cannot speak for themselves.
Questionable criteria that are not recommended for inclusion in the criteria are: “first come, first served” access to the ICU; greatest life expectancy; wealth; age; race; color; sex; religion; physical or mental disability, ancestry; place of origin; gender orientation or identity or expression; marital or family status; profession; celebrity status; and, social connections or social status. Perhaps even more problematic are criteria designed to automatically and arbitrarily exclude certain classes of patients from the ICU, such as: criminal history; severe illegal drug addiction; mental health diagnosis; legal or illegal status in the country; is over the age of 65; and ability to pay for health care if uninsured.
Legal Considerations
Every human being in Canada is entitled to life, liberty and security of the person. Everyone has a constitutional guarantee to the sanctity of their life. The concept of psychological and bodily integrity is included within the concept of security of the person. The right to liberty encompasses the value of personal autonomy to make choices affecting one’s health.
Every individual human being in Canada is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. Discrimination on enumerated or analogous grounds is forbidden: race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
These rights are enforceable against government authorities that are subject to the Charter of Rights and Freedoms. However, the government may pass a law that is exempt from constitutional scrutiny by invoking the “notwithstanding” clause. Even if this clause is not used, if an individual’s constitutional rights are found by a court to be violated, the law may be saved by another provision of the charter that justifies the infringement of rights and freedoms by reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. Moreover, to date, no laws have been passed that exempt physicians and other first responders from the reach of civil and criminal law that imposes liability for wrongful acts or omissions.
Each province and territory has its own jurisdiction to protect the human rights of people. For example, in British Columbia, the BC Human Rights Code prohibits, without a bona fide and reasonable justification, denying to or discriminating against an individual person or class of individual persons in a service or facility customarily available to the public because of the race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons. Similar provisions exist in human rights legislation in force throughout Canada.
While healthcare workers, administrators and other decision-makers may desire legal immunity to insulate themselves from liability, civil and criminal laws exist to meet all circumstances so that no one can place themselves above the law. Abandoning the rule of law to justify human behavior in exigent circumstances would prove that the law is not worth the paper it is written on and would bring the entire justice system into disrepute. Necessity can never be a defense to murder, outside of the very narrow exception of self-defense.
Healthcare providers and individuals in public health risk criminal liability unless there are statutory provisions granting immunity. Otherwise, criminal negligence may be an appropriate charge where planners have failed to act prudently and reasonably, and instead have arguably acted recklessly by not ensuring sufficient supplies of personal protective equipment and medical resources such as ventilators, hospital beds, test kits, lab facilities, and medication that are in short supply today.
Giving healthcare workers and the public incorrect information about the asymptomatic spread of COVID-19 and the benefits of using a face-mask is just one example of how lives can be lost. While the motive may have been to preserve the scant supply of medical-grade masks for healthcare workers and first responders or to promote a false sense of security, the incorrect guidance given to the public and the government about the need to wear masks enabled the exponential growth of the pandemic.
Unconditional access to a ventilator followed by withdrawal of that support in favor of benefiting another patient may also result in a charge of criminal homicide, ranging from manslaughter to murder, depending on the underlying facts. Criminal liability is established by both an act, such as the actual removal or agreement to remove a ventilator, and knowledge of the nature and consequences of that action, such as knowledge that removal of a ventilator will shorten the life of a terminally ill patient. It is comparable to a dilemma faced by physicians who know that by removing the lifeline for one patient, that patient’s life will be sacrificed for the benefit of another patient who may or may not live longer. If both of these patient’s lives are presumed to be equal before the law, criminal liability will be imposed.
Civil liability is another serious concern. Denial of a patient’s access to the ICU and the life-saving resource of a ventilator invites lawsuits against hospitals and triage decision-makers. Denial of an available resource that may have saved the life of a loved one may be found by a court to be a harmful departure from the standard of care required of healthcare providers. The court will need to decide if the patient would have survived but for the denial of the needed medical treatment. This “causation” test is not always possible to meet. It is impossible to know in advance how a lawsuit will go and whether liability will be imposed This results in added stress and uncertainty for healthcare workers already suffering from emotional and psychological trauma from unavoidable “battlefield” triage situations that were not designed for a pandemic of this nature.
Conclusion
The legal considerations strongly weigh in favor of a set of objective national bioethical criteria that removes decision-making and accusations of “playing God” from physicians, nurses and other patient advocates. The challenge is to quickly assemble independent teams of “Bioethics Committees” that will collectively implement the objective criteria that are encouraged to be adopted by physicians, nurses, and hospital administrators. Time is of the essence as this pandemic is accelerating at an exponential pace. It is time to be proactive and to anticipate what will be needed in the near future. The past pattern of reactive responses, with rare exceptions, has resulted in appalling mismanagement at the cost of human lives.
Dr. Charles I.M. Lugosi represents clients from his base with Crease Harman LLP in Victoria, British Columbia in the areas of constitutional law, tort law, bioethics, commercial litigation, professional discipline and regulatory law, administrative law, and criminal law. He holds a law degree from the University of Western Ontario and an LLM, a Masters in Bioethics and an SJD from the University of Pennsylvania, and is admitted to the practice of law in both Canada and the US. See: https://www.lugosi-law.com
Source: Charles I.M. Lugosi, The Need to Formulate National Guidelines for ICU Triage During the COVID-19 Pandemic in Canada, April 10, 2020, https://www.jurist.org/commentary/2020/04/formulating-national-guidelines-for-icu-triage-during-covid-19
