The COVID-19 pandemic has forced health-care policy-makers across the world to face the same gut-wrenching question: if critical care wards become overcrowded, to whom do we give potentially life-saving resources and whom do we deny?

Once reserved for philosophy classrooms, this question has arrived at hospital doors. Northern Italy has already faced it. A surge in the COVID-19 infection rate quickly depleted local resources. Attempts to relocate the sick were ineffective. Coronavirus patients who could have been revived by a ventilator in better times were not. A framework for making life-and-death decisions had to be created on the fly.

Policy-makers here in Canada are struggling to avoid this scenario by introducing new triage protocols or revising existing ones. If the purpose of public health efforts to “flatten the curve” is to prevent an overwhelmed health-care system, the purpose of drafting a triage protocol is to prevent an unprepared one.

But for Canada to truly be ready for the inevitable “second wave” of infection, it needs to replace its current, provincially siloed drafting efforts with a pan-Canadian approach. All provinces and territories should agree upon and adopt a common triage protocol (adapting it, where necessary, for basic local logistics) rather than each drafting its own unique one.

There are important advantages to a unified approach. The ability to adapt the triage protocol in real time in light of new understandings of COVID will be greatly enhanced if the data from all of the provinces and territories can be combined. But if the protocols are different, the potential for data sharing will be compromised and the protocol differences will introduce confounding variables.

Trust in the decisions made under the triage protocols will be enhanced if all of the provinces and territories have taken the same approach to when and how to deny people potentially life-sustaining care that, but for the pandemic, they would receive. If Canadians see that differences in provincial and territorial protocols result in different life-and-death consequences, many will question why those differences exist — and, upon not finding a good answer, could lose trust in the decisions specifically and the health-care system generally.

Critics may respond by labelling harmonization a potentially dangerous goal: what good is a pan-Canadian approach if it sees provinces and territories go all-in on a bad framework? This is a reasonable concern — but it is one that can be dealt with by ensuring that Canada is guided by a world-leading triage protocol. Thankfully, provinces and territories can look to Ontario for that.

The Ontario protocol, on its most basic level, works by prioritizing patients who need critical care in order from lowest to highest short-term mortality risk. As demand for critical care beds outpaces supply, more and more high short-term mortality-risk patients are denied. The harsh reality of ranking and turning away patients is not escaped by any triage protocol. But the Ontario protocol has become a world leader by not compounding that reality with procedural, scientific and ethical errors.

Many other protocols were drafted in secret with no clear indication as to who, if indeed anyone, was consulted outside of the core drafting group.

It was drafted (and continues to be revised) in an inclusive manner after round-by-round consultation with outside experts, especially in relation to marginalized or vulnerable populations. Many other protocols were drafted in secret with no clear indication as to who, if indeed anyone, was consulted outside of the core drafting group. Most notably, the Quebec protocol has faced significant public backlash from persons with disabilities for its lack of consultation.

Consultation has helped the Ontario protocol avoid ethical errors that others have made. Its protocol stands virtually alone in refusing to choose between patients of equal clinical status, instead resorting to a random lottery. Many other protocols make decisions using non-clinical and ethically indefensible “tiebreakers.”

Italy’s protocol, for example, chooses between patients based on first-come, first-served. This means that the first to arrive at the hospital will receive the critical care services. However, this is not as neutral as it might at first appear. Individuals who carry socio-economic disadvantage, which correlates with factors such as race and disability, are less likely to live near tertiary care hospitals. They are also more likely to be reliant on modes of public transportation that are often slower and less reliable than private transport. A first-come, first-served system will deny these individuals critical care — not because they acted with less urgency, but because of pre-existing disadvantages.

The Quebec protocol gives tiebreaking preference to patients with long life-expectancies and to patients who work in healthcare or social services. These preferences may also seem reasonable at first glance, but they actually perpetuate racism and arbitrary line-drawing. Consider first the life-expectancy tiebreaker. African Canadian, Indigenous, and incarcerated populations, as well as persons with disabilities, each live shorter lives, on average, than Caucasian Canadians. So if tiebreaking preference is based on life-expectancies, these populations are at an immediate disadvantage and, all things equal, will not receive treatment. Next, the healthcare and social services work tiebreaker. Here, too, persons with disabilities, and racialized populations are at a disadvantage because they are underrepresented among those who work in healthcare and social services. And while the preference for healthcare workers aims to compensate for infection-prone essential employment, it arbitrarily includes some health workers who are not at a substantially increased risk of COVID (for example, opticians and massage therapists) and excludes essential non-health workers (more often from these disadvantaged groups) who are at higher risk of COVID than some health and social services workers (for example, grocery store cashiers, maintenance workers and couriers).

The Ontario protocol also avoids common forms of discrimination in its initial triage method. The Italian and Spanish protocols, for example, discriminate against the elderly by placing age limits on critical care. The Quebec protocol discriminates against persons with disabilities by making triage decisions on the basis of moderate cognitive impairment or moderate clinical frailty scores. These criteria can correlate with reduced life expectancy, but they invite the perception that decisions are being made on the basis of an assessment of quality of life, and they are irrelevant to the protocol’s stated, non-discriminatory commitment to base decisions on short-term mortality risk. The Ontario protocol explicitly rejects such criteria and avoids implying the use of considerations that fall outside the scope of short-term mortality risk.

Scientifically, too, the Ontario protocol has avoided some common errors. For instance, the protocols from Utah, New York, Austria and Germany are inconsistent with the most recent and COVID-specific clinical research by basing short-term mortality risk assessments — decisions on how to prioritize sick patients —on a patient’s organ function, measured by sequential organ failure assessment (SOFA) scores. Recent research suggests SOFA scores are not good predictors of short-term mortality in COVID patients. Switzerland is also inconsistent with recent research: it reassesses patients in critical care after 48 hours, although the latest findings suggest this is too early. Ontario avoids both of these errors and, therefore, the flawed triage decisions that flow from them.

The protocol cannot continue its practice of framing the short term with reference to “in-hospital survival” in one place, “a few months” in another and “12 months” in yet another.

Now, it must be acknowledged that the Ontario protocol is not perfect. It first needs to attach a single, concrete time frame to its definition of short-term mortality risk, and it needs to use that time frame consistently. The protocol cannot continue its practice of framing the short term with reference to “in-hospital survival” in one place, “a few months” in another and “12 months” in yet another. Any definition will be arbitrary, but a concise, consistent definition will reduce discretion and inconsistency in the application of the protocol, which in turn will reduce the potential for discriminatory bias. Second, the protocol needs to avoid attributing given levels of short-term mortality risk to conditions for which there isn’t evidence of such a risk. For example, it cannot continue to rely on clinical frailty scores alone to guide certain categories of triage decisions. These two shortcomings can be remedied together if the Ontario drafters clearly define short-term mortality risk and tighten its application throughout the document (specifically, when specific test results or conditions constitute triage criteria, they must be accompanied by evidence establishing a link to the short-term mortality risk definition).

Ultimately, as Canada inches closer to the autumn, the horrific possibility of a second wave of the COVID-19 pandemic — one that could crash over and overwhelm health-care systems in several provinces or territories — comes ever closer. In the event that provinces and territories are forced to activate triage protocols and turn away from the usual standards of care, Canadians deserve and will look for evidence-based, ethically justifiable and consistent responses to shortages of critical care resources. They will look for life-and-death decisions to be determined by a carefully drafted, world-class protocol — not by provincial and territorial borders. They would do well to look to Ontario’s protocol and call upon their provincial and territorial leaders to work together on the project of continuous harmonized improvement, as we learn more about the science of COVID and the ethics of allocating resources when demand outstrips supply.

This article is part of the The Coronavirus Pandemic: Canada’s Response special feature.

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Cal DeWolfe
Cal DeWolfe holds a BA in Philosophy and is a recent graduate of Dalhousie's Schulich School of Law. He currently works as a research assistant for the Dalhousie Health Law Institute.
Jocelyn Downie
Jocelyn Downie is a professor in the Faculties of Law and Medicine at Dalhousie University. Downie was a member of the pro bono legal team in Carter v. Canada, a member of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying and a member of the Royal Society of Canada Expert Panel on End of Life Decision-Making.

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