Ontario Chief Medical Officer of Health Issues Updated Medical Directive

By Joshua Lerner

Ontario’s Chief Medical Officer of Health, Dr. David Williams, issued an update to Medical Directive #2 (the “Directive”) as the province attempts to navigate a crushing third wave of the COVID-19 pandemic.

The Directive introduces new measures in the hope of alleviating the overwhelming pressure on Ontario’s health care system resulting from the spread of new “variants of concern” of the COVID-19 virus. In light of a soaring demand for treatment that far outpaces the system’s resources, Ontario’s top doctor has ordered all non-emergent and non-urgent elective surgeries to be ceased, effective immediately. All surgeries that are deemed emergent or urgent are not impacted by the Directive.

The Directive leaves the determination as to what constitutes emergent or urgent to each clinician, recognizing that many considerations are context-specific and dependent on the constraints of each practice. Notwithstanding this, the Directive notes four central principles that should frame the determination of cessation or postponement of procedures:

  1. Proportionality. Decisions to postpone procedures should be proportionate to the real or anticipated capacity to deliver essential treatment to an increased patient population affected by the virus.
  2. Minimizing Harm to Patients. Any decision whether to postpone procedures should be made in a manner that minimizes harm to patients. A clinician must evaluate the potential for morbidity/mortality for procedures that are delayed for longer periods of time. Any procedures with a higher morbidity/mortality rate must be prioritized, and steps must be taken to manage pain and suffering.
  3. Equity. All individuals with the same clinical needs must be treated in the same manner. As long as there are no differences in urgency, the decision to postpone procedures must be made in an equitable manner so as to not disadvantage a particular individual or group.
  4. Reciprocity. Measures must be taken to ensure that appropriate care will be provided to patients, should their conditions change such that urgent treatment is required. This is particularly important for patient populations that are particularly burdened as a result of postponed procedures.

The above principles collectively indicate that the Directive is to be interpreted in a manner that weighs the risks of postponing procedures with the harm likely to arise from being unable to sufficiently receive an influx of severely ill patients.           The Directive places these decisions in the hands of clinicians who are on the front-line and are best positioned to evaluate their circumstances and prioritize care as necessary.

While the Directive provides overarching guidance on implementing measures to ensure essential care is available, specific practice settings may provide their own respective policies as to available resources. For example, clinicians working in a hospital setting should seek clarity from their hospital regarding their specific approach to allocating resources and prioritizing care.

It is important to note that the Directive is issued under the Health Protection and Promotion Act (“HPPA”). Therefore, anyone found in contravention of the Directive is guilty of an offence under the HPPA and potentially liable on conviction to a fine of $5,000 for every day on which the offence occurs.

Clinicians should be sure to document any cessation or postponement of procedures and the factors that guided their decisions, with reference to the principles outlined in the Directive. Such documentation will be of critical importance in the event of a claim or complaint.

Should you require any additional information or further assistance on interpreting Medical Directive #2, please contact us.

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