Revised: Stop Death Panels – what happened with health care rationing in the spring
Updated: October 14, 2020
As the weather becomes colder and the economy weaker, we should know what really happened in the spring of 2020 with COVID-19 and health care policies, and of the dangers faced by the more immune-compromised and elderly members of our society due to government policies.
The Ontario and Canadian governments, along with the Canadian Medical Association, introduced health care rationing policies (“death panels”) using COVID-19 as the justification.
These documents refer to resource allocation and “ethically fraught” decisions over which patients to prioritize for treatment.
These policies stated that elderly long-term care patients should not be admitted to hospitals and that many hospital patients should be transferred to long-term care facilities.
Many of us consider these age-based “life boat ethics” policies—death panels–to be morally unacceptable.
We need to insist that elderly members of our families receive proper and appropriate curative medical treatment, whatever is available, even if it just means food and water!
Health care practitioners, administrators and public officials of all kinds should be alert to the Criminal Code issues and Charter violations involved.
Members of the public should respond actively and communicate to doctors, nurses, hospitals and care homes that they must reject these types of policies.
It goes beyond hypocrisy for governments to imply they care about the spread of infection after introducing health care rationing which forced seniors together into situations where they were more likely to be infected and neglected.
A. Policy Documents
Toronto Star, “Ontario developing ‘last resort’ guidelines on which patients to prioritize if hospitals are overwhelmed by critical COVID-19 cases,” March 29, 2020 (https://www.thestar.com/news/canada/2020/03/29/ontario-developing-last-resort-guidelines-on-which-patients-to-prioritize-if-hospitals-are-overwhelmed-by-critical-covid-19-cases.html)
- “The provincial government has developed a “triage protocol” for doctors who may soon be forced to make ethically fraught decisions over how to ration critical care beds and ventilators–a policy document that will shape life-or-death choices over which patients to prioritize if hospitals become overwhelmed by the COVID-19 outbreak.”
- “… long-term-care patients who meet specific criteria will also no longer be transferred to hospitals.”
Government of Canada, “COVID-19 pandemic guidance for the health care sector” “… 2020-04-22” (https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/health-professionals/covid-19-pandemic-guidance-health-care-sector.html)
- “Long term care (LTC) facilities and home care services will be encouraged to care for COVID-19 patients in place and may be asked to take on additional non-COVID-19 patients ….”
- “…LTC facilities may also be asked to provide surge capacity for hospitals through admission of non-COVID-19 hospital patients … If COVID-19 does develop in LTC facility residents, they should be cared for within the facility if at all possible, to preserve hospital capacity …”
- “Providers of palliative care services and hospice care should plan for an increase in demand. If resource allocation becomes necessary, not all patients who might otherwise receive critical care will be able to receive ICU care or ventilator support.”
- “Ethical issues will inevitably arise during the COVID-19 response. … ”
- “…the influx of COVID-19 patients may overwhelm health care resources … This will require resource allocation decisions including prioritization of patient access to scarce resources including acute care, critical care, oxygen support, ventilator support, and extracorporeal membrane oxygenation (ECMO) support. If patients are not eligible for critical care resources, they should be provided with palliative care and/or pain management.”
- “… If hospitals are in danger of becoming overwhelmed, they may need to implement systems for fair allocation of scarce resources including admission to hospital, and access to an ICU bed or ventilator. These resource allocation decisions determine who may or may not get life-sustaining treatment. …”
Canadian Medical Association Policy: Framework for Ethical Decision Making During the Coronavirus Pandemic,” “Approved by the CMA Board of Directors April 2020” (https://policybase.cma.ca/en/viewer?file=%2Fdocuments%2FPolicypdf%2FPD20-03.pdf).
- “But in contexts of resource scarcity, when there are insufficient resources, difficult decisions have to be made about who receives critical care (e.g., ICU beds, ventilators) by triaging patients. . . . Priority-setting for resource allocation becomes more ethically complex during catastrophic times or in public health emergencies, such as today’s COVID-19 pandemic, when there is a need to manage a potential surge of patients.”
- “. . . While the Canadian Medical Association hopes that Canadian physicians will not be faced with these agonizing choices, it is our intent . . . to provide them with guidance in case they do and enable them to make ethically justifiable informed decisions in the face of difficult ethical dilemmas.”
- ” . . physicians should carefully document their clinical and ethical decisions . . .”
- “The CMA is endorsing and recommending that Canadian physicians use the guidance provided by Emmanuel and colleagues in the New England Journal of Medicine article dated from March 23rd. …”
- “It should be noted that some provinces and indeed individual health care facilities will have their own protocols or frameworks in place. At the time of its publication, this document was broadly consistent with those protocols that we were given an opportunity to review.”
- “The CMA recognizes that physicians may experience moral distress when making these decisions. We encourage physicians to seek peer support and practice self-care. In addition, the CMA recommends that triage teams or committees be convened where feasible in order to help separate clinical decision making from resource allocation, thereby lessening the moral burden being placed on the individual physician.”
- “The CMA recommends that physicians receive legal protection to ensure that they can continue providing needed care to patients with confidence and support and without fear of civil or criminal liability or professional discipline . .”
- “Priority for limited resources should aim both at saving the most lives and at maximizing improvements in individuals’ post-treatment length of life. Saving more lives and more years of life is a consensus value across expert reports.”
- “Limited time and information in a Covid-19 pandemic make it justifiable to give priority to maximizing the number of patients that survive treatment with a reasonable life expectancy ….”
- Operationalizing the value of maximizing benefits means that people who are sick but could recover if treated are given priority over those who are unlikely to recover even if treated and those who are likely to recover without treatment. Because young, severely ill patients will often comprise many of those who are sick but could recover with treatment, this operationalization also has the effect of giving priority to those who are worst off in the sense of being at risk of dying young and not having a full life
- “Because maximizing benefits is paramount in a pandemic, we believe that removing a patient from a ventilator or an ICU bed to provide it to others in need is also justifiable and that patients should be made aware of this possibility at admission. Undoubtedly, withdrawing ventilators or ICU support from patients who arrived earlier to save those with better prognosis will be extremely psychologically traumatic for clinicians — and some clinicians might refuse to do so. However, many guidelines agree that the decision to withdraw a scarce resource to save others is not an act of killing and does not require the patient’s consent. We agree with these guidelines that it is the ethical thing to do. Initially allocating beds and ventilators according to the value of maximizing benefits could help reduce the need for withdrawal.”
- “Conversely, ICU beds and ventilators are curative rather than preventive. Patients who need them face life -threatening conditions. Maximizing benefits requires consideration of prognosis —how long the patient is likely to live if treated —which may mean giving priority to younger patients and those with fewer coexisting conditions. This is consistent with the Italian guidelines that potentially assign a higher priority for intensive care access to younger patients with severe illness than to elderly patients.”
UK Policy: UK’s National Institute for Clinical Excellence (“NICE”) “COVID-19 rapid guideline: critical care” (https://web.archive.org/web/20200322214226/https://www.nice.org.uk/guidance/ng159).
US Policy which CMA recommended: New England Journal of Medicine: Emanuel EJ, Persad G, Upshur R, et al. “Fair Allocation of Scarce Medical Resources in the Time of Covid-19.” N Engl J Med. 2020;382(21):2049-2055. doi:10.1056/NEJMsb2005114 (https://pubmed.ncbi.nlm.nih.gov/32202722/, https://pubmed.ncbi.nlm.nih.gov/?term=fair+allocation+of+scarce+medical+resources+in+the+time+of+covid-19)
Ontario Ministry of Health Directives – Memos: http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/dir_mem_res.aspx
- Transfer of Hospital Patients and Community Clients to Long – Term Care Homes, April 29, 2020 (http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/memos/MOH_MLTC_OH_Memo_Transfer_Hospital_Patients_and_Community%20Clients.pdf)
- Transfer of Hospital Patients to Retirement Homes April 23, 2020 (http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/memos/Memo_Update_Transfer_of_Hospital_Patients_RH_23_04_2020.pdf)
- Temporary Pause on Transitioning Hospital Patients to Long – Term Care and Retirement Homes, April 15, 2020 (http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/memos/Memo_Hospital_Transfers_LTC_Retirement_Homes.pdf)
- Use of Hotels and Retirement Homes, April 2, 2020 (http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/memos/April_2_2020_Memo_on_Use_of_Hotels_and_Retirement_Homes.pdf)
- Ramping Down Elective Surgeries and Other Non – Emergent Activities, March 15, 2020 (http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/memos/DM_OH_CMOH_memo_COVID19_elective_surgery_March_15_2020.pdf)
B. These Policies were Carried Out
These policies were followed even though there was no overwhelming surge in COVID patients. Seniors were moved out of hospitals into care homes and care home residents were kept out of hospitals. Families were warned not to send elderly residents to hospitals.
CBC, “‘No benefit’ to sending seniors ill with COVID-19 to hospital, some nursing homes tell loved ones,” April 3, 2020 (https://www.cbc.ca/news/health/covid-19-long-term-care-1.5519657)
- “‘She would be denied emergency transfer in the event that she was deathly ill from COVID,’ Schmidt says the doctor told him.”
- “She would be denied access to an ICU. She would be kept in the care facility and treated to the best of their abilities there.”
- They were also pressured to change from life-saving treatment to “Do Not Resuscitate.”
- A letter “sent to a family member by a long-term care facility in Ottawa says residents who get sick with COVID-19 will stay where they are.”
It is believed that concentrating seniors in care homes instead of hospitals led to more infections. The dogmatic story was repeated that there was no effective treatment for elderly COVID-19 patients.
The Globe and Mail, “How shoring up hospitals for COVID-19 contributed to Canada’s long-term care crisis,” May 21, 2020 (https://www.theglobeandmail.com/canada/article-how-shoring-up-hospitals-for-covid-19-contributed-to-canadas-long/).
- An 86-year old patient died after being discharged from hospital, who “was one of thousands of seniors discharged to nursing and retirement homes as Ontario, Quebec and other provinces rushed to clear beds ….”
- “… some hospitals, physicians and long-term care facility administrators were discouraging families from sending infected nursing-home residents to the hospital, saying little could be done to effectively treat COVID-19 in patients who were old and chronically ill.”
- “… most of the nursing- and retirement-home residents who have succumbed to COVID-19 in Canada died inside the virus-stricken, understaffed facilities, while many of the hospital beds opened for coronavirus patients sat empty.”
- “. . . Jane Meadus, a lawyer with the Advocacy Centre for the Elderly in Toronto: ‘. . . had they moved people out [of nursing homes] when they became aware they were COVID-positive, they might have been able to slow or stop the infections from continuing through the homes.’”
- “. . . 80 per cent of the Canadians who’ve died of COVID-19 have been residents of seniors’ facilities. . .”
- Quebec: 2,355 long-term care residents and 653 retirement-home residents died (officially of “COVID-19”) Ontario: 1,427 for LTC homes and 125 for retirement homes
- In March, the Quebec government told hospitals to do “load shedding” by postponing procedures and transferring patients.
- Ontario transferred 2,200 patients from March 2 to May 3 (to LTC and retirement homes).
- Dr. Fred Mather, the president of Ontario Long Term Care Clinicians, said that a surge in acute care had been predicted for around the Easter weekend, but it didn’t happen. He also said they had the impression that they were supposed to avoid sending residents to hospitals.
- Some hospitals asked LTC managers to “talk to families about why they shouldn’t send their COVID-19-positive relatives to the emergency department.”
There was an unusually large number of deaths in these care homes in a short period of time.
The Globe and Mail, “Nine residents die, 34 staff suffer symptoms as coronavirus devastates Bobcaygeon, Ont. nursing home,” March 29, 2020 (https://www.theglobeandmail.com/canada/article-covid-19-kills-nine-infects-34-staff-at-bobcaygeon-nursing-home/).
- The care home tried to convince families to not transfer their loved ones to hospital: “It’s possible that you may face the decision to send your loved one to the hospital, especially if they develop pneumonia and have trouble breathing,” Michelle Snarr wrote on March 21. “This would raise the question of going on a ventilator. A frail nursing-home patient who is put on a ventilator is quite likely to suffer a great deal, and may not survive …I am asking all of you to think hard about what would be in the best interest of your loved ones.”
- Dr. Oldridge: “I’ve never had four deaths in a day at any nursing home I’ve worked at.”
- Dr. Snarr had mentioned in her letter to residents’ families that the hospital “had limited resources to look after a surge of patients with COVID. They are also concerned about having COVID brought into the hospital by infected patients.
CP24.com, “Nine residents of Bobcaygeon long-term care home die following COVID-19 outbreak,” March 30, 2020 (https://www.cp24.com/news/nine-residents-of-bobcaygeon-long-term-care-home-die-following-covid-19-outbreak-1.4873985?cache=yes%3FclipId%3D64268%3FclipId%3D375756%3FclipId%3D89578).
- “The reason I sent the email [to the families] was to give them a heads up that this is not normal times,” she said. “Under normal times, we would send people to the hospital if that was the family’s wishes, but we knew that was not going to be possible knowing that so many people were going to all get sick at once . . .”
‘It’s a gut-wrenching choice’ (https://www.cbc.ca/player/play/1719997507843)
- “Michelle Snarr, medical director of Pinecrest Nursing Home in Bobcaygeon, Ont., where at least 20 residents have died of COVID-19, talks about the pros and cons of transporting ill, elderly residents to hospital.”
‘We can just make them comfortable’ (https://www.cbc.ca/player/play/1718938179542)
- “… we have no effective treatment other than supportive care for these folks, and obviously there’s no cure. So when the infection takes hold in their lungs, in this elderly population we can just make them comfortable.”
ICU Admissions went down substantially for the upper age ranges. Go to “Coronavirus disease 2019 (COVID-19): Epidemiology update” (https://health-infobase.canada.ca/covid-19/epidemiological-summary-covid-19-cases.html) and scroll down to “Figure 4. Age and gender distribution of COVID-19 cases in Canada as of September 24, 2020.” Compare the charts for “hospitalized,” “admitted to ICU,” and “deceased.” As the age range increases, the number of deceased increases substantially (Canada-wide: 80+ is 6,557 or 71.3% of the “COVID-19” deaths), and the number of hospitalized increases steadily with age. However, notice that “admitted to ICU” starts dropping off at 70-79 (23.1% of those admitted to ICU) and gets even lower for age 80+ (11.6% of those admitted to ICU).
C. Evidence of Neglect
There was evidence of neglect in long term care homes, including malnourishment and dehydration. On top of being denied access to hospitals, seniors in care homes were subject to extreme COVID-19 isolation rules.
One of the articles above also mentions the care homes being understaffed.
The Globe and Mail, “Ontario coroner investigates COVID deaths in care homes, but can’t confirm if inquests are needed,” May 18, 2020 (https://www.theglobeandmail.com/canada/article-ontario-coroner-investigates-covid-deaths-in-care-homes-but-cant/)
- “George Morrison .. . . died a week after he was sent to hospital with apparent anorexia, dehydration, a urinary tract infection and symptoms of COVID-19, said his daughter …” “Ms. Morrison asked Ontario’s chief coroner to investigate her father’s death because of her concerns that he was not being properly fed and cared for because of the home’s low staffing levels during the COVID-19 outbreak.”
Montreal Gazette, “Analysis: How Montreal’s CHSLDs mirrored the Diamond Princess outbreak,” May 14, 2020 (https://montrealgazette.com/news/local-news/analysis-how-montreals-chslds-mirrored-the-diamond-princess-outbreak/)
- “Here in Quebec, and especially in Montreal, it has become clear that our … long-term care centres (CHSLDs) have also become incubators for the coronavirus. . .”
- “… authorities in Quebec were late in transferring residents out of CHSLDs. They did so only after many fell ill, moving them to acute-care hospitals . . . .Some of those residents were malnourished and dehydrated.”
Ministry of Health, “COVID-19 Outbreak Guidance for Long-Term Care Homes (LTCH) Version 1,” April 1, 2020 (https://web.archive.org/web/20200406203248/http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/LTCH_outbreak_guidance.pdf, accessed August 28, 2020). This document describes isolation and screening procedures and how they applied to staff and visitors (see pages 2 and 7). I think these inevitably contributed to low staff levels (due to fear also) and residents being neglected.
D. There was no shortage of resources
Even though COVID did not overwhelm hospitals in Ontario and Canada, the health care rationing policies were followed, surgeries were postponed, and there were thousands of empty hospital beds.
FAO Financial Accountability Office of Ontario, “Ontario Health Sector: A Preliminary Review of the Impact of the COVID-19 Outbreak on Hospital Capacity,” Apr 28, 2020 (https://fao-on.org/en/Blog/Publications/health-2020).
- Lead-up to the COVID-19 outbreak: Ontario had 906 acute care beds, 357 critical care beds unoccupied.
- By April 14, “taken measures that made available an additional 9,349 acute care beds, 2,077 critical care beds …, including: “Cancelling elective surgeries and other measures taken to free-up existing beds (including moving existing hospital patients to alternative places of care) resulted in the availability of 7,849 acute care and 585 critical care beds …”
CTVNews.ca, “‘All of our rooms are empty’: Hospital ERs vacant during pandemic,” April 29, 2020 (https://www.ctvnews.ca/health/coronavirus/all-of-our-rooms-are-empty-hospital-ers-vacant-during-pandemic-1.4918208).
- “… more than 11 thousand unoccupied beds in hospitals across Canada, … fewer ER visits … a staggering number of surgeries — almost 53 thousand — have been cancelled.”
Toronto Sun, “Thousands of surgeries cancelled despite empty Ontario hospital beds: FAO,” Apr 28, 2020 (https://torontosun.com/news/provincial/thousands-of-surgeries-cancelled-despite-empty-ontario-hospital-beds-fao).
- “As of April 23, there were 910 hospitalized COVID-19 patients leaving over 9,000 unoccupied acute care hospital beds including over 2,000 critical care beds,” an FAO statement says. “… the province has a significant amount of remaining available capacity …”
E. Because of the surplus in health care resources, I think the emergency declaration was invalid even just going by what the legislation says: On the Emergency Management and Civil Protection Act in Ontario: (https://www.ontario.ca/laws/statute/90e09#BK12) 7.0.1 (3) lists two criteria. However, there wasn’t an emergency that required immediate action to prevent a danger of major proportions and there wasn’t a lack of resources. The information above confirms there was a huge surplus in hospital beds during the alleged crisis. Also, 7.0.2 (1) says that emergency orders should be constrained by the Charter: “The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.” 7.0.2 (2) says that an emergency order has to alleviate harm or damage and that making an order has to be a reasonable alternative. 7.0.2 (3) says the orders should be limited, in intrusiveness, for example. None of these conditions were met because the orders violated the Charter, were not reasonable, and there was no real health emergency as proven by the thousands of empty hospital beds. Other kinds of completely unnecessary crises were created instead.
F. Relevant points in the Canadian Charter of Rights and Freedoms (https://laws-lois.justice.gc.ca/eng/const/page-12.html#h-40). There are many others points which were violated by COVID-19 policies.
- 2. “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
- 7. “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof …”
- 9. “Everyone has the right not to be arbitrarily detained or imprisoned.”
- 12. “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
- 24. (1) “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction …”
G. These parts of the Criminal Code (https://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html) seem relevant:
215 (1) Every one is under a legal duty
. . .
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
. . .
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
217 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
. . .
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
229 Culpable homicide is murder
. . .
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.
More information on COVID-19: see https://canadianliberty.com/covid-19-summaries-and-resources/
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