April 15, 2021
On April 9th, 2021 the Ontario government issued two new emergency orders to assist hospitals with the surge of new COVID-19 cases requiring admission and ICU support across the province.
One of those emergency orders is a transfer order, enabling hospitals to transfer patients to another facility without patient consent. The order is intended to help hospitals manage capacity and distribute patients across the province in order to optimize the availability of critical care in areas most impacted by the pandemic.
The other order relates to re-deployment of LHIN and Ontario Health employees and would not typically apply to most Ontario physicians.
This update focuses on the order related to hospital transfer.
Ontario’s transfer order provides hospitals with the ability to move patients in an effort to manage a surge. It is not an order to implement a critical care triage protocol in major surge conditions that can otherwise guide physicians on the allocation of scarce critical care resources among patients within the hospital. The CMPA has called on the Ontario government to provide medico-legal protections for physicians and other providers if required to implement such a protocol.
Obligations for hospitals
The regulations impose obligations on the hospital to ensure that any transfer without consent
- is necessary to respond to a demand for critical care resources due to COVID-19
- will enable the hospital (or assist another hospital) to manage its critical care resources
- will reduce foreseeable risk of serious bodily harm to a person
The regulations require that reasonable efforts be taken to obtain consent from the patient (or the patient’s substitute decision maker).
Obligations for physicians
In order to effect the transfer, an attending clinician (who will often be a physician) must be satisfied that the receiving hospital can provide the required care and the transfer will not compromise the patient’s medical condition.
The receiving hospital must be prepared to admit the patient and the admitting order of a clinician at the receiving hospital (most often a physician) will be required.
Physicians involved in a patient transfer without consent will need to:
- make a determination about whether a patient can be transferred without compromising the patient’s medical condition
- take reasonable steps to be satisfied the receiving hospital can provide the care the patient requires
- work with the receiving hospital to ensure the patient will be admitted
- follow any hospital policies and procedures established for this process
- document all decisions in the patient’s chart
Physicians at the receiving hospital will also need to work with the transferring hospital to determine whether the patient can be admitted and should follow all hospital policies and procedures established for this process
CMPA protection and assistance
The CMPA will continue to provide members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts—including the transfer of patients without consent under this order.
We encourage physicians with questions to contact the CMPA for advice via the secure member portal (member login required), or call 1-800-267-6522 Monday to Friday: 8:30 a.m. to 4:30 p.m. ET