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Patients lay on stretchers in the hallway of the emergency department as the unit was at maximum capacity at the Humber River Hospital during the COVID-19 pandemic in Toronto on Dec. 9, 2020.Nathan Denette/The Canadian Press

If a third wave of COVID-19 overwhelms Ontario hospitals, and intensive care units run out of beds, the province’s doctors could be forced to make previously unthinkable decisions about who gets access to life-saving treatment. Precisely how they would do that remains largely under wraps even as concern mounts about the spread of more contagious new variants of the virus.

Ontario has cancelled procedures, added beds and helicoptered patients from hotspots to less-crowded hospitals to avoid the worst. But its contingency planning for how doctors would cope with an uncontainable COVID-19 surge has occurred largely behind closed doors. That has raised alarms with disability-rights activists and the Ontario Human Rights Commission, who warn hospital triage protocols must guard against discrimination.

Meanwhile, some doctors say a draft “emergency standard of care” distributed to hospitals last month – but not publicly released -- does not go far enough. They say it lacks a grim but necessary provision: The power to unplug patients who are unlikely to survive from life support without consent to make room for those with a better chance.

Not allowing this kind of triage, some doctors argue, could create a kind of first-come, first-served system, in which patients who might have lived are denied access to scarce ICU beds because others who have little hope already occupy them. More people, they say, would end up dying.

The problem is a legal one. In Ontario, removing life support without the consent of the patient or their next of kin or designated decision maker has been barred since the Supreme Court of Canada decision ruled in 2013 that the province’s Health Care Consent Act applies to both providing and withdrawing care. The decision did not affect other provinces.

Quebec’s triage protocol, which has been made public, would allow doctors to apply a set of criteria to remove patients from life support without consent if needed. Other jurisdictions, including New York, have had to invoke triage protocols, formal or informal, to deal with tidal waves of COVID-19 cases.

Ontario’s COVID-19 bioethics table, made up of critical-care doctors and academics, recommended in a September “framework” document that the government issue an emergency order “related to any aspect [of the triage plans] requiring a deviation from the Health Care Consent Act.” It also called for an order to provide liability protection for doctors. The document laid out the principles for triaging patients in a COVID-19 surge.

In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.”

The draft emergency standard of care distributed to hospitals would classify new patients needing life support based on how likely they are to survive for 12 months. But those already inside the ICU, no matter how small their chance of recovery, would stay put.

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said the government has to issue an emergency order to fix an unfair triage plan that would leave more people dead. But he said he realizes politicians would rather not confront the issue before it is necessary: “I understand that this is a nuclear football for any government.”

Last month, with more than 400 COVID-19 patients in ICUs across the province, hospitals raised frantic alarms. But with the recent slowdown in infections, numbers have declined. On Friday, the province said it had 325 patients in its ICUs with the virus.

Critics say Ontario is wrong to keep the life-and-death deliberations quiet. Disability rights activists obtained leaked copies of the framework and the proposed standard of care and posted them online. Neither of the co-chairs of the bioethics table responded to requests for comment for this article.

“That’s just the way Doug Ford likes to do things, behind closed doors, and in secret,” Opposition NDP Leader Andrea Horwath said. “But on something like this, literally life-and-death decisions ... there’s just no excuse to not make these kinds of policy decisions the result of massive engagement with Ontarians.”

Disability rights activists say the current proposal would discriminate against the disabled. Some hold that doctors should never remove a patient from life support without consent.

“That is a point that we shouldn’t have to get to,” said Mariam Shanouda, a lawyer with the ARCH Disability Law Centre, who argues the government must do more to ensure such drastic measures are never needed.

David Lepofsky, a lawyer and chairman of the Accessibility for Ontarians with Disabilities Act Alliance, said the triage protocol lacks an arm’s-length process to appeal decisions, which doctors say is not compatible with acting quickly in a crisis. He also questions the government’s legal authority to issue an emergency order that would allow doctors to remove a patient from life support without consent.

“Any doctor that would consider doing this, I hope they’ve got a lawyer,” Mr. Lepofsky said.

Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights. It focuses on the individual patient’s risk of dying, she said, not any disability.

Dr. Frolic said the government needs to assure ICU doctors that the protocol and an emergency order are in place long before infections begin to spike again, so that doctors -- and the public -- are prepared: “That’s not necessarily something that can turn on overnight.”

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