Navigating triage protocols amid COVID-19

Issues

• Triage protocols are intended to assist in decisions on allocating resources among COVID-19 infected patients in an ethically informed manner. This is often achieved by way of protocols for allocation of critical care resources.
• Deciding which patients receive critical care resources during the COVID-19 pandemic can create significant clinical uncertainty, as well as ethical and moral distress.
• Triage protocols can conflict with the duty of care to individual patients and potentially create medico-legal risk.

The bottom line

• Triage protocols are used as a last resort and do not extend beyond the COVID-19 public health emergency.
• These protocols intentionally focus on a broader set of considerations, rather than the rights of individual patients.
• Contact the CMPA for context-specific advice regarding your medico-legal risks associated with a triage protocol.

Need to know

How do triage protocols help me?

• Triage protocols can provide objectivity, consistency, and efficiency for decisions regarding the management of critical care resources. They provide guidance for determining which patients receive treatment, the level of care, and under what circumstances.
• Triage officers, teams, or committees tasked with implementing triage protocols can alleviate some of the individual moral burden, allowing you to better focus on providing the best possible care to patients.
• For example, some protocols contemplate the availability of supports such as social work as well as template letters to patients and their families to assist with communicating triage decisions.
• Some protocols also set out a detailed process for resolving conflicts between healthcare providers and between patients and healthcare providers regarding triage assessments and decisions.

How are my obligations different under triage protocols?

• Be aware that triage protocols focus on maximizing benefits for the public at large and may override the duty of care to individual patients.
• Follow any applicable and relevant triage protocols established by your healthcare institution, health authority, public health agency, or government. In some jurisdictions, such protocols have the force of law if ordered under emergency management legislation.
• Thoroughly document your understanding of the triage protocols being applied, as well as your rationale for deviating from or deciding not to apply an established protocol if this is necessary for a specific patient.
• Proactively communicate with patients, substitute-decisions makers, and families (where appropriate) how triage protocols might affect patient care and how they might impact the application of any advance care directives and other end-of-life wishes.
• Apply triage protocols fairly and consistently across all patients with similar prognoses. While the primary purpose is to prioritize certain patients over others, patients cannot be discriminated against based on a prohibited ground of discrimination. Some protocols include guiding principles for triage, which specifically reference non-discrimination and protection of individual human rights.

Does following a triage protocol create liability?

• Withdrawing a critical care resource from a patient without consent would normally create a risk of civil liability, criminal liability, and/or professional discipline. Triage protocols may require these unilateral decisions.
• Governments can enact legal authority to require physicians and other healthcare providers to follow the guidance set out in triage protocols as well as protection from legal liability when acting in good faith in accordance with the protocols. This ensures physicians and other healthcare providers can continue providing needed care to patients with confidence and support without fear of civil, regulatory or criminal liability.
• Colleges can undertake various regulatory and policy initiatives to protect physicians and other healthcare providers from professional discipline for applying established triage protocols and responding to the unique challenges that COVID-19 presents.
• Courts and Colleges would generally take into account an accepted triage protocol, if there is an allegation that a critical care resource was removed from a patient without a conclusion that treatment is futile and without the consent of the patient or their substitute decision-maker.
• Failing to follow an established triage protocol could also lead to civil liability, criminal liability, or professional discipline.

Looking ahead

• If there is a surge in COVID-19 patients such that resources are close to depletion, triage protocols will apply to all patients, including those with other medical conditions who may require the same resources as those patients infected with COVID-19.
• Triage protocols developed in response to COVID-19 should only be followed in accordance with their specific terms and procedures for implementation and application during surge conditions. Once they are no longer in effect, they should no longer be relied upon for the delivery of care.

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.