Providing medico-legal support for physicians in relation to the Critical Care Triage Protocol

Medico-legal support would provide reassurance to doctors and other healthcare providers when providing care on the frontlines of the pandemic in compliance with the Protocol and in good faith. CMPA members continue to have a duty as part of a mutual defence organization to practise in a manner that is consistent with the values of the medical profession and to follow guidance from their medical regulatory authority.

April 12, 2021

The Honourable Christine Elliott
Deputy Premier and Minister of Health
Toronto, ON M7A 2J3

Dear Deputy Premier Elliott: 

Given the alarming rise of COVID-19 cases driven by new variants of concern, the Canadian Medical Protective Association urgently requests the government to broadly release the Critical Care Triage Protocol and provide the protections required to implement the Protocol.

Ontario is imminently facing the prospect of having insufficient critical care resources and ICU beds to manage the surge of patients with COVID-19 and other illnesses, as the number of patients in critical care has reached the highest level since the pandemic began. In order to minimize the impact of this probable scenario, we understand that efforts by government are underway to be prepared to turn to a Critical Care Triage Protocol.

As has been experienced in other international jurisdictions, doctors and other healthcare providers in these circumstances will not be able to provide all patients with the level of care as would be expected outside of a pandemic emergency and particularly in the context of critical care. This will create medico-legal risks for doctors and other healthcare providers, potentially exposing them to civil liability, criminal liability, and professional discipline. They will need both the legal authority to follow the Protocol (and contrary to the Health Care Consent Act), as well as protection from legal liability when acting in good faith compliance with the Protocol.

In this time of uncertainty, doctors and other healthcare providers should be reassured that their good faith efforts to provide care during the COVID-19 crisis will not put them at increased medico-legal risk. Providing such reassurance is needed so that doctors and other healthcare providers have the confidence to continue providing care to their patients. This legal authority and framework can best be implemented by the province through an emergency order under the Emergency Management and Civil Protection Act (EMCPA) in response to the current public health emergency. We are seriously concerned about burnout levels amongst doctors and other healthcare providers. The prospect of addressing the current surge of COVID-19 cases without the reassurance of a Critical Care Triage Protocol and supported by an order made under the EMCPA is daunting and we believe has impacts on future resourcing of the healthcare system. 

We implore the government to act now. Doing so enhances system preparedness, and ensures Ontario’s doctors and other healthcare providers can continue providing needed care to patients in the face of COVID-19 with confidence. Failing to act now risks exacerbating the serious concern many have about the resilience of healthcare providers who are facing unprecedented challenges from the surging pandemic.

If there is any further information the CMPA can provide with respect to these issues or to assist with implementation of the Protocol, I would welcome the opportunity to do so.

signature décorative

Yours sincerely,
Lisa Calder, MD, MSc, FRCPC
Chief Executive Officer

cc. The Honourable Doug Ford, Premier of Ontario
Matthew Anderson, Ontario Health
Allan O’Dette, Ontario Medical Association
Anthony Dale, Ontario Hospital Association
Dr. Nancy Whitmore, College of Physicians and Surgeons of Ontario
Catherine Gaulton, Healthcare Insurance Reciprocal of Canada
James Wallace, Chief of Staff to the Premier
Heather Watt, Chief of Staff to the Deputy Premier and Minister of Health
Rana Shamoon, Premier’s Office, Policy Advisor on Health