A public health emergency may force a shift away from the usual patient-first ethics, to a public-first approach. This episode covers the concept of reasonable care and the patient’s best interests to help you make sense of the unusual demands the COVID-19 pandemic may place on you.
Dr. Steven Bellemare: Welcome to a special edition podcast brought to you in the context of the COVID-19 pandemic.
Dr. Yolanda Madarnas: The CMPA recognizes these are unprecedented times for the Canadian medical community, and how stressful the current events may be for you.
Steven: We really want to be there for you.
Yolanda: We listen to your medical-legal questions and concerns, every weekday on the phones.
Steven: And while we’re not able to be out on the road meeting with you face-to-face to offer education, we thought we could bring it to you virtually through a podcast.
Yolanda: Hello everyone. I’m Dr. Yolanda Madarnas, Physician Advisor and Physician Consulting Services.
Steven: And I’m Dr. Steven Bellemare, Director of the Practice Improvement Department.
Yolanda, there are so many things to talk about in this context, aren’t there?
Yolanda: For sure. Physicians are being asked to make unprecedented decisions. We’re being asked to practice in unfamiliar settings outside of our comfort zone, we’re being asked to come out of retirement to lend a helping hand. We’re providing virtual care for the first time.
Steven: And perhaps, actually, even to change the way we provide care to accommodate the constrained resources, or to protect public health. You know, as physicians, we wonder about our obligations and our rights in the context of this public health emergency. Specifically, one of the things we hear very much at these times is the issue of managing resource scarcity.
Yolanda: So while many of these answers are available through our website, and the new COVID hub on our website, or you can call us for individualized one-on-one advice, but for this podcast we chose to focus on a particularly challenging issue, the one of managing scarce resources.
Steven: You know the Canadian health system and the resources are already stretched thin, but in the context of the pandemic we’ve been pushed to a place where we’ve never been before.
Yolanda: Absolutely. So, envision this as our collective objective being to make the best use of our precious human resources during these extraordinary times. So in today’s podcast, we’re going to focus on two take-home points that the patient’s best interest should really be our guiding light. And when in doubt, focus on the concept of reasonable care.
Steven: We have to keep in mind, though, Yolanda, that we’re dealing with two very complex issues right now in a very short time.
Yolanda: I know. And by no means this, is intended to be a comprehensive review of the topic. It’s really an introduction and touching on some main issues and food-for-thought.
Steven: Yeah. The objective here is not for you to come out after listening to this and say well, okay. I know all there is to know about this. No, no, on the contrary. If you need more, call us, visit the website.
Yolanda: So, one of the issues on everyone’s mind is so how do I balance my patient’s needs with these scarce resources?
Steven: Well, let’s talk about the issue of best interest then.
Yolanda: But it’s such a stressful issue, Steven. We hear news from around the world what’s happening in other countries where physicians are forced to play God and choose who will get scarce resources like a ventilator. Understandably, Canadian physicians will also feel incredibly stressed about that.
Steven: And that’s for certain. And indeed, you know, what we’re learning from the world’s experience every day, and the issues we face are so very fluid that it’s very difficult to keep up with what’s going on.
Yolanda: The issue of scarce resources is not new or unique to the COVID-19 situation, but the pandemic certainly makes it a screening issue now.
Steven: I do think, Yolanda that we can convey a reassuring message for our listeners and that’s that in the few legal cases that touched on the issue of scarcity of resources, we’ve actually seen the courts have an open mind.
Yolanda: That’s right. The courts have been willing to consider the resources available to physicians when assessing whether the standard of care was met.
Steven: The courts in Ontario, for example, have indicated that a doctor can’t reasonably be expected to provide care which is unavailable or impracticable, due to the scarcity of resources.
Yolanda: So that said, it’s not to say that it would be acceptable for us to throw up our arms in despair and say well, it’s a system problem. There’s nothing I can do about it. Within a resource constraint, a physician is still expected to do the best they can for patient and to act reasonably in each circumstance.
Steven: We need to be very clear here, right? Limited resources are not a defence to an allegation of negligence.
Yolanda: Well it may not be defence, but it is a factor in determining whether the care you provided was reasonable under the circumstances.
Steven: That’s right. And that gets to the essence of the first take-home message, Yolanda. The physician’s duty is to look out for the best interest of their patient.
Yolanda: But in a context, you do the best you can under the circumstances.
Steven: Right. The standard is not perfection. It’s reasonableness. And the underlying legal principles that guide how a potential legal action would be adjudicated, remains unchanged. Those are going to stay the same. It’s the application of these principles that will shift.
Yolanda: And we do need to remember that right now, we are in a global emergency health crisis. It is not business as usual. Context matters.
Steven: You know when emergencies are declared, be they by federal Emergencies Act, or provincial or local public health declarations, they may also include directives to provide guidance and legal authority to physicians who are following those orders in good faith, even that the practice might not be the same in non-emergency situations.
Yolanda: So let’s look at an example, Steven. Take a patient in need of a ventilator who presents to hospital A.
Yolanda: Unfortunately, the ICU is full, there are no beds and there are no ventilators available. So what do I do?
Steven: Well I guess based on what we just said, we could think that it might be deemed acceptable to not offer the required care. Well, but it’s not that simple.
Yolanda: You’re right. We do have to ask ourselves: What would a reasonable physician do under these circumstances? And in this case, it would be reasonable to look elsewhere.
Steven: So, look at transfer care to hospital B.
Yolanda: Right. Call around, advocate for your patient. Look for another service corridor.
Steven: And so if in fact, another hospital, say, hospital B, in a different city has available ventilators, perhaps acting as a reasonably competent physician would mean transferring care?
Yolanda: Exactly, Steven. But, let’s push the situation even further.
Yolanda: Now let’s say that all hospitals in the region are overwhelmed. Field hospitals that have been setup are overwhelmed and that no one has ventilators available. So seeking to transfer this patient is no longer feasible.
Steven: And it may no longer be what a reasonable physician would do. So the concept of reasonable care is contextual then.
Yolanda: You’re right, it is.
Steven: And therefore, I take it that taking note of the circumstances surrounding your decision-making is then very important, because what might justify an action in one context, might not otherwise justify it in another.
Yolanda: Absolutely. Look, in the context of a pandemic where clearly we keep seeing media reports about how scarce resources are, how limited options are. There’s no doubt, our patients and their families are well aware of the issue and might be understanding, but it still doesn’t mean that those hard conversations aren’t necessary.
Steven: That’s right.
Yolanda: Noting and documenting the difficult circumstances that play into our decision-making is critical.
Steven: It’s important to remind ourselves again, that the circumstances we’re dealing with here are those of a public health emergency.
Yolanda: Because of those risks involved and because of rationing of resources, we might be asked to do things we might never have considered otherwise. Take for example, being directed by a hospital directive to don personal protective equipment before providing CPR to a patient in a cardiac arrest.
Steven: Right. It seems so counterintuitive to not provide CPR right away. I mean, right now we’re going to have to stop and say no, no, wait a minute. I won’t provide lifesaving treatment like I’ve always done. First, I have to gown and mask and glove. I mean, that seems so counterintuitive.
Yolanda: And yet, in the context of a public health emergency, when we’re directed to do by either a directive or an order in the interest of public health, adapting that standard of care might be justifiable.
Steven: Well, that’s something to wrap our brain around, isn’t it?
Yolanda: It is. But, you know, we’ve seen provincial colleges state that they’re willing to be flexible and reasonable with potential complaints arising in the context of this pandemic.
Steven: That’s right.
Yolanda: And, I think the message here that’s being sent is that while it’s important to continue to offer the best care we can at all times, it’s also not time for dogma.
Steven: Now thankfully, we don’t have to make the difficult decisions we anticipate all by ourselves.
Yolanda: That’s right. Using an established ethical framework can be very helpful.
Steven: And will actually help ensure that decisions made are uniform between health care providers and based on sound principles.
Yolanda: In fact, in various jurisdictions there are frameworks under development right now, as we record this, that are based on principles of fairness and other ethical legal practical considerations. It won’t make difficult conversations any easier, that’s for sure. But, using an approved ethical framework can, maybe, bring us a bit of solace when we have to make a decision to treat someone over another.
Steven: That’s right. So, if your hospital doesn’t have one, it may be that another organization, be it a provincial one or a national one, might have one that your hospital can use. It’s also quite likely that your hospital will provide access to an ethics consultation. So, those are helpful tools that can actually help us make the tough decisions that we dread.
Yolanda: They’re helpful to promote consistent application of these sound ethical principles.
Steven: In the end, though, you know what? Despite the guidance that such frameworks can provide, it’s very likely that you’re going to find it hard to discuss what can and cannot be done with patients and their families.
Yolanda: Of course. There’s no amount of framework that’s going to make these discussions any easier.
Yolanda: We all hope not to have to get to the point to tell someone that they can’t access the care they would otherwise be able to if it weren’t for the pandemic. But if it does happen, the way we do so is really important.
Steven: Yeah. In the end, when all is said and done, perhaps people might forget what you said specifically, but they’ll remember how you made them feel.
Yolanda: That’s absolutely right, Steven. I have to say that even though we started out the podcast with two separate take-home messages. They’re actually, very intertwined, aren’t they?
Steven: You’re right. And that’s because typically, the patient’s best interests and the concept of reasonable care are very well-aligned. But you know what? When we’re pushed to the limit, like the pandemic, we may actually start to see these two concepts stray a little bit.
Yolanda: And when you simply cannot offer what is in the patient’s best interests, the notion of what is reasonable has to shift.
Steven: And we’re seeing that now in several provinces with directives to postpone elective care and non-essential services, for instance.
Yolanda: And that relates back to that ethical framework we referred to earlier, to help deal with limited resources aiming to protect the public overall. Let’s be clear, though, those frameworks aim to ensure that services aren’t pulled indiscriminately at any one person’s discretion.
Steven: That’s right.
Yolanda: Generally, we look to reallocate resources and make decisions about priorities in a fair and principled manner.
Steven: And so, while the very concept of having to choose who does and does not get access to, say, a ventilator, or the concept of having to delay a cancer surgery, may be hard to accept for physicians who want to provide the best care for their patients. But it may be reasonable to do so in order to comply with the hospital or provincial directive to restrict the use of services in anticipation of a surge in need related to the pandemic.
Yolanda: Yeah. I agree, Steven, but I think that offers little consolation to our listeners and the clinicians out there on the front lines.
Steven: And I agree with you there 100 per cent. We’re living in unprecedented times. Not in our lifetime have we had to face such an acute surge in the need to provide critical care services to patients. And the impact of the pandemic goes way beyond those patients infected with the novel coronavirus, right? It affects care across the board.
Yolanda: And while we understand that we may all, as physicians, be forced to make choices we would never have wanted to make, we do want you to know and remember that the CMPA is here to support you.
Steven: If you keep the best interests of your patients at heart and act reasonably in the circumstances you face on any given day.
Yolanda: That’s really all anyone can ask of you. Do your best under the circumstances.
Steven: Yolanda, I think we’re going to have to bring the podcast to an end here, but before we go, would you have a communication tip to offer our listeners?
Yolanda: I do. I mean, it’s a simple one: take the time. Take the time necessary to build a rapport with your patients, their families. Express empathy, and explain to them the context that you face together and the rationale for your treatment decisions.
Steven: We really can’t forget the human element here.
Yolanda: Absolutely. Steven, do you have a documentation tip for us?
Steven: Well, you know, I would have to say that it’s important to note your efforts to look for other options. If you call another hospital, write it down. If you’re acting under a hospital directive, write it down. If you don’t have the support staff you normally would and that affects your care, write it down. But you know what? Do it professionally, doing it factually. It’s not about judgment. It’s really just about taking note of the circumstances, the difficult circumstances that you’ll be facing at those times.
Yolanda: For sure. And Steven, if I might add: Take notes of those difficult conversations with the patients and their families where you outline the facts and the options available. The same rules about documentation we’ve always emphasized at the CMPA will continue to apply as usual and will serve you well in challenging circumstances like this.
Steven: That’s right. Well that’s all we had for today. Thanks for joining us. We hope this was helpful to you. You’ll find additional up-to-dated resources on the COVID-19 hub on our website. If you have any other questions, though, please contact us.
Yolanda: Please call us.
Steven: Our number is 1-800-267-6522. We’re here to provide you with support, clarity and guidance in these unprecedented times.
Yolanda: Take care, everyone.
Steven: And be well.
Announcer: These learning materials are for general educational purposes only, and are not intended to provide professional medical or legal advice, nor to constitute a “standard of care” for Canadian health care providers.