Standard of care

In December The Suburban broke the story of a Protocol issued as a non-mandatory guideline by the Quebec Health Ministry to limit ER and ICU care during the pandemic. Three weeks ago we published another exclusive that Quebec was considering changing the Protocol into a mandatory Decree. That decree would put into force the refusal and withdrawal of critical care if a person did not meet a “70% survivability level” as determined by a three-person committee in each hospital.

We have been reporting weekly on the burgeoning consensus among doctors and lawyers against such a Decree. Criticism has focused not only on the violations of the right to life guarantees in the Canadian and Quebec Charters of Rights that such a Decree would entail, but more specifically on the discrimination against people based on age which would also constitute violations of guarantees against ageism in both Charters. Most seniors could never reach the 70% threshold. The Protocol even has a standard for infants and newborns that would be very difficult to meet in many cases.

Last week The Suburban printed yet another exclusive when we received a copy of a letter from yet another important member of Montreal’s medical community also cautioning against the Protocol. The letter was from Dr. Julie Lajeunesse, Director of Professional Services at Hôpital Notre-Dame. She joined medical colleagues Dr. François Marquis head of critical care at Maisonneuve-Rosemont Hospital, Dr. Jean-François Lizé head of ICU at the CHUM and Dr. Paul Saba of Lachine Hospital and fonder of Physicians for Social Justice in criticizing the Protocol as unnecessary and unethical.

In covering this unfolding story, The Suburban editorially warned that the Protocols which started out as being applicable only to ER/ICU surges during the pandemic, may become permanent because of Quebec’s desire to sacrifice saving life for saving money.

Sadly, as of last Thursday, this dire prediction seems to be coming true. The Suburban received a copy of a new document that the Health Ministry wants all hospitals to use and that was presented at a Zoom conference by the Health Ministry’s Dr. Diane Poirier, Chair of the Ministerial Committee on Critical Care and her colleague Marie-Eve Bouthillier, Ph.D., Chair of the Committee of Experts charged with putting the Protocols into use.

The conference included all senior managers of the Quebec health network. The issue of turning the Protocol into a Ministerial Decree was not raised, but Dr. Poirier went further. She made the point that the Ministry wants the rationing of critical care to become the “general standard of care” at all times. And she made this point even though the 29 page document she presented to the participants still referred to “access to critical care in extreme conditions of a pandemic.”

The centrepiece of the presentation focused on what the document called four “Myths and realities.” It was meant to give those assembled the “tools” for dispelling opposition to critical care rationing. Yet the talking points to the “myths” was filled with contradictions and misrepresentations not only on facts but even in regard to the original protocol.

As the first myth, the document states that “the Protocol is seen as discriminatory against vulnerable people — particularly seniors because of the 70% survivability requirement — and that decisions were made behind closed doors.” Yet as a counter-argument all that was offered was that the Protocol was produced with some “47 expert consultants” and that the only “discriminatory criteria” is that a patient should be “able to survive one year.” No doctor The Suburban spoke with could describe any circumstance where survivability for any amount of time could be assured in critical care. The Ministry is therefore setting up a condition that can never be met and will therefore inevitably lead to more deaths.

The second “myth” the document addresses is that “this triage will kill patients.” The answer the document gives does not address the time-lag in the three person committees decision-making which inevitability delays care and leads to death but merely states that “doctors will still make saving lives a priority but that there will be “inevitable deaths due to the severity of illnesses and lack of resources.” The Ministry’s talking point on this is silent on the authority of the attending physician versus the committee.

The third “myth” the document addresses is that the “the Protocol will put doctors in a contentious position with families.” The Ministry’s talking points on this state the following, “In the event of a dispute, the peers judge a doctor’s practice according to the standard in force at the time of decisions and acts. The protocol reduces the variability of practices and resource allocation decisions.” The Ministry is stating clearly that resources will be reduced, patients may die from that, but that a doctor will be judged on the standard in force. Since the government is ordering reduced standards of care, the document is suggesting that doctors legal liability will somehow be mitigated by the argument that they could do no more because the Ministry had limited their resources. The Ministry is saying that it will not allow tortious suits against medical practitioners who follow the triage protocols. Someone at the Ministry has clearly not consulted a constitutional lawyer since access to judicial remedies is a protected constitutional right. The Ministry knows what it is doing is wrong and seems to be readying the public for legislation limiting tortious relief.

The final “myth” is one where the the talking points bear some semblance to reality. The “myth” it addresses is that “the Protocol is perfect and cannot be modified.” The talking points admit that the Protocol is far from perfect and will benefit from constant “amélioration.” It’s final words are telling of how little thought went into this. They are simply two words, “Complexe mais....” The dots are the Ministry’s.

Nowhere in this new document is the opposition of doctors and legal experts in health law and ethics on this Protocol being “unnecessary and unethical” even addressed. Only one of the attendees made a comment and that gave some comfort to this newspaper which has been criticizing this initiative for some three months. He told Dr.Poirier that, “..the Ministry must supply more ammunition for responses because there is considerable opposition from elements of the Anglophone community.” Though that comment is gratifying to This newspaper, it strikes one as odd since most of the passionate and vocal opposition has come from Francophone doctors and legal experts and this senior administrator made no mention of that.

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