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Health Law Blog

How Much Risk is Reasonable Risk a Health Care Professional is Expected to Take in a Pandemic?

April 24, 2020

Those on the frontlines in the battle against COVID-19 deserve the best personal protective equipment (PPE) that is available. If hospital administrators are not willing to give them that, I believe health care workers have the right to refuse to treat those patients until it is provided.

I’ve spoken to many anesthesiologists in particular although the problem is not unique to this speciality. However, these are the physicians who are most particularly at serious risk of harm when doing their job. Anaesthesiologists are the specialists who sedate people, then insert breathing tubes down the throats of those being hooked up to ventilators. This procedure is the patient’s last hope for survival, yet the attending physicians put themselves at great risk since that person may cough during the procedure and infect the physician immediately.

All anesthesiologists tell me similar stories of PPE being rationed and how they have to fight to get even minimum protective gear. This should not be allowed to occur in Canada, yet it seems to be happening across the country as hospital bureaucrats withhold lifesaving PPE from a healthcare providers.

Let me give you an example. A man fighting for his life due to COVID-19 is brought into an operating room where three members of what is called an airway team await. After sedating him, an anesthesiologist inserts breathing tubes down his throat. This is known as an aerosol-generating medical procedure since the tiny coronavirus particles the patient is producing may be inhaled from those trying to save him.

After the tubes are inserted, a respiratory therapist and a nurse remain in the room to perform other crucial tasks. But are any of those three protected against the deadly, airborne COVID-19? Not nearly enough.

At the beginning of this crisis, the airway team was told to rely on simple surgical masks, commonly worn by people in the street. Even now – with daily reminders in the news about how lethal COVID-19 is – these three vital frontline workers are still denied the PPE they need, namely the airtight helmets and full-body, disposable coveralls last seen during the Ebola crisis.

Instead, they are told to rely on N95 masks – which filter out 95% of airborne particles – goggles, and what is basically a hairnet to stop the virus. No health-care professional is comfortable with that, especially those working so closely on the airways of COVID-19 patients.

What is really absurd is that I’ve been told some Ontario hospitals have thousands of protective hoods in storage. But they won’t release them, having the audacity to tell our frontline healthcare workers that they don’t really need them or telling our healthcare workers that they cannot release them until they are completely satisfied that they can replace them. This is patently absurd.

We have a pandemic. What better excuse can we have to use them? If health-care workers refuse to treat patients because they are not being given proper PPE, the deaths that will result cannot be laid at the feet of the frontline team it lies with hospital management.

Doctors nurses and other para medical personnel are expected to take some risks, but it has to be a reasonable risk. To send them into aerosol-generating procedures without maximum protective gear is certainly asking them to assume an unreasonable risk.

Sadly, if they refuse provide their services in such a situation the hospital may threaten to suspend their privileges and report them to their regulatory colleges on the basis that they display disgraceful, dishonourable conduct. To borrow the phrasing of an early 1980s song, physicians are “caught between the moon and New York City” in making a decision on whether to go to work, with the moon representing all that is heavenly and spiritual, while New York represents what is real. In my opinion such action against our medical personnel in the circumstances would amount to disgraceful dishonourable conduct.

Nurses and other paramedical personnel are in a somewhat better situation, as their jobs are protected by their union, which is advocating for more and more appropriate PPE for their members. Even if their jobs are protected they could still be threatened with complaints to their regulators.  

Some commentators side with health care workers in this issue. As a Globe & Mail columnist recently noted: “I don’t believe we have any right to insist health-care workers put their lives in danger regardless of circumstance. We would never expect police officers to arrive at a shooting without guns themselves. We would never expect firefighters to enter a building about to collapse.”

Exactly right, and in this age of COVID-19, we can’t expect health-care professionals to go into battle with this virus without proper protection. Those on the frontlines should be the ones deciding what equipment they need, not being dictated to by hospital administrators. Medical professionals are not going to ask for something they do not need. We must trust them. They are doing life-saving work because they want to do it.

If there is a shortage of PPE in Canada, perhaps that can be linked to a February decision of our Prime Minister to send 16 tons of PPE to China. Why did he give those precious supplies away when the rapid spread of this virus was well known at the time? Canadian hospitals now keep their supply under lock and key, with medical professionals left to beg for access.

We have truly let out doctors and nurses down. Our hospitals are so bereft of PPE that they cannot do their job and feel comfortable that they are not taking the virus home with them.

When doctors and nurses ask how many N95 masks or other PPE are in the hospital, no one will answer. Management avoids the question, creating needless anxiety during what is already the greatest health crisis this generation has faced. Very naturally our health care professionals interpret no answer or “enough” as “we don’t have nearly enough.”

It has also been suggested that the University of Toronto Network has had people go to now-closed dentists, tattoo parlours, veterinary clinics and salons to collect N95 masks and other PPE, with those items stored in one central hospital location. Why not instead give those precious items to every hospital in the area on a proportional basis, with the chief of staff and CEO at each location disclosing their stock of PPE in a newsletter every day?

All Canadian hospitals should have had that protective equipment in stock to meet this pandemic. Have the lessons we learned from SARS been forgotten?

When it comes to health care, the “suits” are running our hospitals. This is simply not fair, especially to frontline workers. Someone needs to be held accountable and the situation must be rectified immediately and stock piles replenished to be ready for the next attack.

Testimonials

Tracey is an extraordinary person - and a lawyer of the first order. We named her as one of our inaugural Alumni of Distinction at the University of Western Ontario, Faculty of Law. I could not recommend her more highly!

Ian Holloway QC Dean and Professor of Law, The University of Western Ontario

Tracey Tremayne-Lloyd Health Law