Providing Healthcare in a Public Health Emergency Part 5: Avoiding Missteps and Professional Consequences Related to Resource Allocation Decisions

Part 5: Resource Allocation Decisions

Welcome to part five of our ongoing blog series exploring how health care providers (HCPs) can avoid missteps and professional or legal consequences in the face of shifting professional responsibilities and challenging work environments caused by the COVID-19 pandemic. In this installment, we discuss the potential consequences of resource allocation decisions during a public health emergency.

Resource Allocation Decisions

An issue that has repeatedly made headlines both in Ontario and around the world is the increased demand for resources such as personal protective equipment (PPE), hospital beds, ventilators and other respiratory supports during the COVID-19 pandemic and potential shortages of the same. There is also a parallel increase in the demand for human resources, which has prompted the provincial government to make several orders related to this issue, and professional colleges to offer special registration categories for students and retired professionals to boost the number of practicing members of various health care professions in the field.

Providing health care in an environment where there is not enough of a given resource, whether it is equipment, supplies, or personnel, presents significant challenges for HCPs that can range from providing care in a different manner or offering different options than they would under ideal circumstances, to deciding which patients will receive a resource-restricted treatment. The latter is a worst-case scenario that is an unfortunate reality in regions of the United States, Italy and Spain, where the surge of COVID-19 cases has put their healthcare systems under significant strain. In these areas, HCPs are struggling to provide care to an overwhelming number of COVID-19 patients requiring intensive care, and to make ethical decisions about who will receive potentially life-saving treatment with the limited resources available to them.  Fortunately, this has not yet been reported as an issue in Canada.

The number of COVID-19 cases in Ontario has not yet risen to a level where hospitals are similarly overwhelmed (and hopefully, it never will), due to the diligent efforts of the public, government and the health care sector to keep infection rates low. Nevertheless, Ontario has begun planning for a worst-case scenario in which HCPs may need to make difficult resource allocation decisions, such as who will receive a ventilator if there are not enough for every patient who requires one. Deciding who will receive a resource-restricted treatment is done through a process called “triaging”, which is a familiar concept already used in emergency rooms to determine the priority of patients relative to the seriousness of their injuries or medical condition. This is in contrast to a “first-come-first served” model of allocating resources.

Triaging requires HCPs to make decisions with the health of the overall population in mind, and not only the best interests of a given patient, with a view to directing resources where they are needed most and will be the most effective. Triaging decisions must also be made in keeping with other values enshrined in our legal system, such as non-discrimination and respect for human rights. There is no one universally accepted way to make these decisions and it continues to be an active discussion among HCPs, medical ethicists and policy makers.

Disability rights advocates have already expressed concerns regarding the clinical triage protocol prepared by the provincial government, which began circulating in late March, 2020, and have requested additional language to help ensure that people with disabilities are not discriminated against. Allocating scarce resources can also bring HCPs into conflict with patients or their families and give rise to legal claims.

An HCP or health care facility that has made the difficult decision not to offer a resource-restricted treatment to a patient may find themselves faced with a College complaint or legal action for damages resulting from their decision. Other resource-related issues could also give rise to legal liability, including the failure to provide staff or patients with PPE, or failure to provide care due to shortages of staff or expertise. Roughly two months into this ongoing emergency, class actions have already been filed against nursing homes operators and some commentators are anticipating a flood of COVID-19 related claims.

The following is a summary of steps that facilities and providers can take in preparation for having to make some of the most difficult decisions in the midst of the most difficult and constantly evolving circumstances.

Health Care Facilities

Health care facilities, such as clinics, long-term care homes and hospitals, should ensure appropriate planning and supports are in place to help HCPs make difficult decisions in clinical settings. Following the Severe Acute Respiratory Syndrome (SARS) outbreak in Ontario in 2003, most large facilities undertook measures to ensure that they were prepared in the event of a future infectious disease outbreak. The SARS experience serves as a reminder that if and when resource shortages do occur, health care facilities should communicate to HCPs and other staff and provide guidance on how to allocate resources and cope with shortages so that limited resources are used efficiently and in following best practices.

Health Care Providers

There are several steps that HCPs can take to minimize the legal and professional consequences of resource allocation decisions, including:

  • Staying up to date on current best practices and guidance from employers, government and regulatory bodies;
  • Documenting any circumstances that may influence patient care, including shortages of equipment or personnel, hospital directives, or government guidelines, in the patient record if these impact on a particular patient’s care. Attempts to arrange alternative options for a patient should also be documented;
  • Taking time to explain resource allocation decisions to patients and their families, including the facts having an impact on the decision and any alternative options that are available. These discussions should also be documented in the patient record;
  • Seeking support of colleagues and supervisors when making difficult decisions. This not only provides moral support but may also lead to creative solutions.

Government

An additional step that could be considered to protect HCPs is the enactment of legislation to insulate providers from liability arising from the provision of health care in response to or as a result of the COVID-19 pandemic. On April 2, 2020, the New York State Legislature enacted the Emergency or Disaster Treatment Protection Act (“EDTPA”), which shields health care facilities, volunteers and HCPs from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health services where:

  • the health care services are pursuant to a COVID-19 emergency rule or in accordance with applicable law;
  • the decision is impacted by the COVID-19 outbreak and in support of the state’s directives; and
  • the services are arranged for or provided in good faith.

The immunity provided under the EDTPA shall not apply where an act or omission constitutes willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, but also specifies that this does not include acts, omissions or decisions resulting from a resource or staffing shortage. This strikes a balance between protecting the public and protecting HCPs.

Conclusion

Resource allocation decisions are one example of how providing health care in the context of a public health emergency may give rise to allegations of professional misconduct or legal action, and why, now more than ever, HCPs should ensure that they are up-to-date and familiar with professional standards. This includes public health directives, emergency orders, and other policies that affect how HCPs deliver health services during the current public health emergency.

If you or your organization have questions regarding how to implement public health directives and other COVID-19 related policy changes, please contact us.

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