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Your Questions Answered – Understanding the Ethics of Using Restrictive Measures

April 17/2020

by Françoise Makanda, Communications Officer at DLSPH

Two weeks ago, the Dalla Lana School of Public Health hosted its second COVID-19 webinar which explored the ethics of using restrictive measures in the control of infectious diseases.

Responding to a pandemic through the healthcare system alone may not be effective. The use of public health measures such as physical distancing raises important ethical issues regarding the limits to personal freedoms in times of public health emergencies. Although these measures played a role to prevent the spread of SARS in 2003, H1N1 in 2009 and Ebola in 2014-16, they were limited in scope in comparison to the measures used in the COVID-19 response.

Associate Professor Alison Thompson at DLSPH and the Leslie Dan Faculty of Pharmacy and Associate Professor Anna Banerji at DLSPH and Director of Global and Indigenous Health at Continuing Professional Development at the Faculty of Medicine, answered additional questions from the audience.

Did you miss the webinar? You can watch it here on our YouTube page.

Q: The Quarantine Act can give law enforcement the power to enforce restrictions such as physical distancing and quarantine. Given the evidence that Black communities in Canada disproportionately interact with law enforcement, which leads to a host of issues including the overrepresentation of Black people in our prison system, what measures can we put into place to ensure that we do not exacerbate this systemic issue of over-policing our Black communities?

A: Alison Thompson says…

This is an important issue when we look at how restrictive measures and their enforcement impact communities. We know that restrictive measure impact marginalized groups of people disproportionately and exacerbate existing inequities. This has nothing to do with the inherent resiliency of the individual or their community, and everything to do with the social conditions that lead to their marginalization in the first place.

When it comes to implementing restrictive measures, we need to be sure that as a society we are meeting the reciprocal obligation to make sure that people can comply with restrictive measures, and that compliance with them is enforced fairly.

We probably can’t fix existing social injustices in a time of a pandemic, but if we don’t acknowledge them and take them into account, explicitly in our planning and response, we can certainly make them a lot worse. And, the overall impact on the public’s trust in government and public health can be devastating if we don’t get this right.

It is also important to acknowledge that communities that have low trust in government and law enforcement going into a pandemic are going to be less likely to trust public health messaging around the need for restrictive measures. We need to be mindful of this when it comes to enforcement because there are legitimate reasons for this mistrust in many cases.

This requires us to think hard about how to improve the trustworthiness of law enforcement and government even when we aren’t facing an outbreak. And maybe there is a carrot we can use instead of a stick when it comes to helping everyone stay safe.

Q: Do you foresee our current situation escalating to a point where Parliament may elect to use POGG, if so, what would that circumstance look like, and what laws or other legislative measures do you think the government may create under POGG?

A: Alison Thompson says…

I am not a legal expert, but it is hard to imagine that this would be necessary, given that the existing powers that public health has in each province is already more than enough to deal with a public health crisis. The fact that provinces are declaring states of emergency means that we have already invoked powers in many provinces that can more than adequately deal with the current situation—some would say even that was excessive.

Given that we use the principle of subsidiarity in Canada, the provinces and their respective public health institutions would have to be found incapable of responding to the crisis for this to happen. Since health is considered distinctive and divisible between the provinces, it seems highly unlikely that such legislative measures would be required and would require evidence of inability on the part of the provinces to protect the public from harm. It is conceivable that one province might fail to contain the outbreak such that it impacts other provinces negatively, but even in such a case, the other provinces would need to have failed in their responses to such a situation to justify federal invocation of the peace, order and good government powers.

Q: What are professionals doing to ensure that information regarding the pandemic and people’s rights are being worded efficiently for those with communication disorders (aphasia, PPA, dementia, etc.), or those whose first language is not English?

A: Alison Thompson says…

I cannot speak to what professionals are doing, but in any public health crisis, different audiences need to be identified, along with their respective communication needs.

If we fail to engage with people who may face challenges in receiving and interpreting public health messaging, we cannot expect people to comply with public health measures. This is particularly true when people need to understand the reasons, they are being asked to do certain things because they infringe on their liberty.

We know that people are more willing to comply with public health measures when there is consistency, coherence, explanation, and transparency in communications. This is more easily said than done and requires well-resourced and well-researched communication efforts that are as well planned as the epidemiological response to an outbreak.

Q: Historically having the ability to turn to others be it family members, friends or community-based organizations (e.g. churches) has been a source of support for people when they are most vulnerable. What, if any consideration, has been given to adverse effects of removing these human to human interactions?

A: Alison Thompson says…

While this is widely acknowledged to be one of the main challenges with social distancing, we are fortunate that we live in a time where we can still connect through technology. And while isolation does not always lead to loneliness, we need to have support for people who are facing mental health challenges due to the stress of isolation. This includes providing care for those who were already experiencing loneliness, especially elderly and disabled people who are not able to participate in community easily.

We have seen the impact on those who rely on mental health and addictions supports that are no longer available because of COVID-19, and we can expect that when we look back on this time, this will have been a crisis within the bigger crisis.

And while we are all getting creative about ways to stay in touch, for some this will not be a challenge easily overcome. When we cannot participate in the rituals and social practices that provide comfort and consolation, such as funerals, religious festivals and even just a drink down the pub with our mates, we need to provide alternative means to meet those needs. That means finding ways to enable people to receive last rites in hospitals, making sure that those who cannot afford expensive data and cell phone plans can have access to technology that will allow them to stay connected.

And most of all, we need to find ways to feed and house the homeless who currently rely on church lunch programs, food banks and other social support agencies that may not be functioning at this time, or that cannot provide the physical distancing we all need right now.

Profs Alison Thompson and Anna Banerji

Q: How should we think about the role of the action/omission and killing/letting die distinctions in debates over-rationing? For example, do you think there is a difference between the following two situations? 

(1)  Neither patient A nor patient B are presently on a ventilator, and doctors are debating whether to give it to patient A or patient B. 

(2)  Patient A is already on a ventilator, and doctors are debating whether to give it to patient B. 

A: Alison Thompson says…

While many ethicists will say there is no difference between killing someone and letting them die, or in this scenario, withholding versus withdrawing treatment, there are some clinicians who will tell you that while that may be the case in theory, in practice it sure feels like there is a difference.

Recent research I have conducted on the experiences of clinicians who provide medical assistance in dying shows that there are some physicians and nurse practitioners who find this distinction highly relevant, and are surprised by how traumatized they are after injecting the patients with a lethal substance, when they may have withdrawn life-saving treatments many times before without the same moral residue.

It is for this reason that work has been done over the past several years by critical care physicians as well as bioethicists to consult with the Canadian public about how to ration scarce resources in general, but also in times of pandemic.

Ontario will soon release its own criteria for how critical care will be provided in the Province in a possible situation of a shortage of these ventilated beds. These criteria are based on the ethical principle of maximizing the benefit of critical care, so patients who are the most likely to benefit from this highly aggressive form of treatment can receive it.

But this will mean that some will not receive critical care and that some people may be removed from critical care who are already receiving it. Both situations will be morally regrettable, and we will have to come to terms with the fact that we have allowed this scarcity to occur when we have known this was a possibility for years. We will also have to come to terms with the fact that this poor planning will require that the government of Ontario give an executive order that will mean that patient consent to withdrawal of treatment will no longer be required.

These are terrible decisions for clinicians and politicians. To be sure, they are not taken lightly, or without a lot of consultation and discussion. But these decisions will be based on triage criteria that were developed in consultation with the Canadian public through several consultative methods over several years. They have also been discussed over several years in the medical community that identified the medical criteria that can be used to determine who is most likely to benefit. Or, put another way, who will not be put through aggressive and sometimes traumatizing procedures for very little or no benefit.

And while the suffering of patients and their families is always the most important consideration, we do well to remember that many clinicians were traumatized during the SARS outbreak when they had to make these decisions alone, and with no such guidance from the Canadian public on the ethics of their actions.

Allocating critical care beds on a first-come, first-served basis, which is essentially what we do now, is not ethically justifiable when a system is overwhelmed. We need this guidance from ethicists and physicians, and the public, so that we can defend how we allocate these precious resources, and support those with the terrible responsibility for providing care to the sickest COVID-19 patients.

Q: Should intergenerational equity be an ethical consideration in a pandemic?

A: Anna Banerji says…

When there are limits resources in a crisis, like a war or natural disaster, then the resources are typically given to those who have the highest chance of surviving. As this virus tends to be more serious in the older populations or with people with chronic health conditions, they have less of a chance of surviving than someone younger who is healthy. Tough decisions have been made in places like Italy where they have had to prioritize who received lifesaving equipment, but hopefully, it will never come to that in Canada.

Q: Why are restrictive measures only employed when the system hits a breaking point?  Would it not be preferable to Institute these restrictive measures at the onset of the pandemic to allow equal delivery to all and ensure sustainability throughout the course of the pandemic?

A: Alison Thompson says…

Public health’s use of restrictive measures should be proportionate to the threat to the public’s health. An overly precautious approach might be the most effective, but it is the hardest to justify to the public, especially when it creates economic and other hardships for people. And it often leads to the public not trusting public health after it is all over and nothing happened! This is a perpetual problem for public health: When they do their jobs right, nothing happens.

Canada has rolled out progressively more restrictive measures in response to the best available data and judgement. We have been able to avoid overwhelming the system so far, but there will be other health costs to the population because of these measures. It is a difficult balancing act, and we will never have the information we need at the moment to make the best decisions. But, we are fortunate to have had some lead time in getting ready as other countries slowed the spread while dealing with their own crises.

Making sure that inequities aren’t worsened by pandemics requires more than just early deployment of restrictive measures. It requires advance planning that acknowledges the fact that pre-existing inequities in health and wealth are made worse in disasters. It requires that we build in protections and considerations for the most vulnerable in society in our planning and response. They are the hardest hit by restrictive measures.

When this is all over, there will be some hard questions to answer about why those experiencing homelessness don’t have access to shelter that allows them to self-isolate without risk to themselves and others. About why we don’t have enough masks, or critical care beds, or resources to provide mental health and addictions support through a crisis. And, about why we haven’t thought about how to reach those who don’t have access to healthcare at the best of times.

A pandemic response is never going to be able to deliver equal delivery to all and be sustainable if there are inequities and vulnerabilities in the system to start. But we can certainly base our planning assumptions around these flaws, and make sure that when we do use restrictive measures that they will be proportionate but also fair.