CMA 'last resort' guidelines could allow for discrimination against elderly, disabled, health law prof says

One University of Toronto bioethics professor says the Canadian Medical Association's guidelines for how to prioritize patients in a "last resort" pandemic scenario shares some of the same problems as the province of Ontario's: namely, the potential for discrimination against people with disabilities and other marginalized groups.

Ontario's disability community has raised concerns that the province's plan does not guarantee that people with disabilities will be treated at the same priority as neurotypical and able-bodied people, and states that those with certain "clinical frailty scores" and who also suffer from a progressive illness or condition would be excluded from intensive care.

Health Minister Christine Elliott said at a press conference Tuesday that people with disabilities will continue to be treated with the same level of care as those without. She also said Ontario's plan isn't the final version, though the document seen by QP Briefing did not contain any indication that it was a draft.

Neither the province's or CMA's guidelines contain the word "disability."

Professor of health law and policy Trudo Lemmens said he understands that these are "broad principles," but that guidelines about people "on the margins" need to be made explicitly clear.

The CMA did not respond to a request for comment.

The CMA's framework actually "pays less attention to some other considerations of fairness and justice and avoiding discrimination than the Ontario guidelines do," Lemmens said. He added that they "seem to be more utilitarian."

Lemmens said he worried about the CMA's advice to maximize "the number of patients that survive treatment with a reasonable life expectancy and to regard maximizing improvements in length of life as a subordinate aim."

The focus should be specifically on how likely patients are to survive their treatment in intensive care, Lemmens said. If guidelines move away from that principle, people with disabilities, chronic illnesses, and the elderly may be discriminated against based on how many years they have left, he said.

"What is a reasonable life expectancy? How many months, how many years count?" he said.

There are arguments to be made that if short-term survival expectancy is equal between two patients, then the younger one should get priority, Lemmens said — but there are also arguments to be made for a lottery system in that case.

Issues like these need open and transparent debate, which the province and CMA have not provided an opportunity for, Lemmens said.

The CMA addresses this in their framework, saying that normally, the group would "spend many months" in consultations before creating a document like this, but the current pandemic does not provide enough time.

Lemmens said the debate doesn't need to take months in this scenario — even a much shorter time frame would have been helpful. He said it was "surprising" to see no input from stakeholders like the Ontario Human Rights Commission, or disability rights groups.

There has been a concerted effort among Ontario disability rights groups to guarantee that they will not be discriminated against on the basis of their bodies. ARCH Disability Law Centre recently launched an open letter to Elliott and Seniors and Accessibility Minister Raymond Cho demanding changes to the province's triage protocol.

"The Ford government must immediately and very publicly retract the protocol, whether or not it is a draft," reads a release from the AODA Alliance. "It must publicly issue a directive that this protocol is not to be followed by health care providers."

The group said Ontario's current framework "is triggering real fear within the disability community."

Lemmens said the CMA needs to be "careful" about its recommendation that frontline health-care workers be prioritized for lifesaving care. The association says this is "not because they are somehow more worthy, but because of their instrumental value" — if critical workers fall, all patients will suffer the consequences.

"I would say yes, this can be justified," Lemmens said, though officials should not default to this strategy right away. For example, if there is no indication that there will be a shortage of those types of workers, they should not automatically get priority, he said.

A positive sign from the framework was the recommendation for triage committees, Lemmens said, adding that doctors in this scenario would be "under extreme pressure," and taking these choices off their plate would help. He added that committees could be ensured to have diverse representation, to guard against the potential for discrimination.

Ontario Medical Association President Dr. Sohail Gandhi said he hoped these guidelines won't have to be put into practice, but if they are, it will be partially due to a lack of doctors in the province.

Italy, which has been extremely hard-hit by the virus, has about 4 doctors for every 1,000 people — Ontario has 2.4, he said.

"During a so-called normal time, we are already overworked and trying to manage," Gandhi said. Adding a pandemic could mean doctors will have to make these types of hard choices, he said.

Gandhi also called on any final guidelines to allow physicians "just a little bit of leeway" in decision-making.

"I wouldn't want it so prescriptive that my clinical judgement could not play a role," he said.

CLARIFICATION: A previous version of this article referred to Trudo Lemmens as a "bioethicist." Though he has worked as a bioethicist in the past, his current role is as a professor.