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Ottawa Citizen Op-Ed: Law Professors Shariff and Trask: COVID triage protocols could hurt marginalized people most

Medicine must never recommend death as a treatment 'option' that puts systemic efficiency above patient autonomy and consent.

February 10, 2021 — 

The following Opinion piece was published on February 8, 2021 in the Ottawa Citizen by University of Manitoba Faculty of Law professors Dr. Mary Shariff (Associate Dean, Academic) and Brandon Trask.

Ontario’s Critical Care COVID Command Centre recently released an “emergency standard of care for major surge” protocol, which is intended to “save the most lives in the most ethical manner possible” if the COVID-19 pandemic threatens to overwhelm hospitals.

A significant feature of the protocol is the concept of critical-care triage. If a surge in cases leads to a shortage of intensive-care unit (ICU) beds, for example, the protocol calls for prioritizing patients with the greatest chance of being alive 12 months after developing whatever condition brought them to the point of requiring ICU treatment.

The National Post reported on Jan. 21 that Ontario’s Bioethics Table is requesting that Ontario doctors be given the unilateral ability to terminate life-support treatment for their patients in order to free up medical resources for other patients. The Bioethics Table also wants doctors to be insulated from any liability related to these life-ending decisions.

These initiatives seem to be influenced by a form of utilitarian thinking, which focuses on maximizing health outcomes with the available scarce resources.

No doubt there is value in considering maximizing the “good” for the “greatest numbers.” However, it always leaves open the question as to how do we actually define the “good.” Additionally, utilitarian analysis often fails to account for other impacts. We know that members of marginalized groups tend to have the poorest health outcomes.

The proposed major surge protocol tries to allay concerns about discrimination in resource-allocation decisions. However, by prioritizing those with better likely health outcomes, utilitarian rationing schemes ultimately engage in discrimination and deepen marginalization.

Utilitarianism is not the only theoretical approach to ethical issues; it is overly simplistic and precarious to resort to utilitarian reasoning out of sheer efficiency considerations. Legal and human rights norms and standards reflect that other ethical obligations exist and should prevail.

We have come to a point where we recognize human rights and acknowledge the historic tendency to create systems rife with systemic discrimination. This stems from a human propensity to develop institutions that tend to reflect back an image of those creating the system — unconsciously or otherwise.

The problem of a COVID-19 surge requires more than a basic ethics framework; it requires the operation of law informed by an understanding of human rights and the determinants of health. Rights aim to protect and advance the interests of the weakest and most marginalized among us. Recitation of the importance of avoiding prohibited forms of discrimination rings hollow when it is accompanied by a protocol document calling for a utilitarian triage system.

It is important to note that the Supreme Court of Canada ruled in October 2013 in the Rasouli case that Ontario doctors do not have the unilateral ability to withdraw life-sustaining treatment from their patients when they disagree with a substitute decision-maker. Moreover, in February 2015, the Supreme Court ruled in the Carter case that the prohibition on assisted death was unconstitutional in relation to competent adults who seek death as a response to their condition.

While these cases are different, the point is that the Supreme Court emphasized the requirement for consent. In the Rasouli case, the court did not enable health-care professionals to unilaterally impose a “duty to die” on patients consuming medical resources that did not satisfy the doctors’ concept of what was beneficial.

The practice of medicine must never devolve to the point of recommending — or imposing — death as a treatment “option” in pursuit of systemic efficiency above patient autonomy and consent. This is especially true when these efficiency considerations are built upon systemic discrimination.

Our laws and legal system exist to provide order, equality, consistency and protection against arbitrariness, discrimination and confusion. We cannot simply opt out of our laws — and Supreme Court decisions — when times get tough. Indeed, it is during difficult times that we most need our laws and our legal system. Now, more than ever, we cannot afford to lose our way.

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