A Duty to the Ailing: Care and Healthcare During Canada’s COVID-19 Shutdown.

Essay Contest 2020

2nd Place Winner

by Emma Little

In the practice of tort law there exists the term ‘duty of care’ which, in cases of negligence, describes a person or an organization’s responsibility “to take all reasonable measures necessary to prevent activities that could result in harm to other individuals and/or their property.”1 The various federal, provincial/territorial, and municipal governments of Canada have a duty of care to protect the health of the citizens that live in their respective jurisdictions.

In the wake of the COVID-19 pandemic, the governments of Canada have worked to uphold this duty by restricting access to non-essential services where close contact could spur community spread. Unfortunately, certain restrictions have proved a hindrance to the governments’ fulfillment of their duty of care, with restrictions on Canada’s healthcare sector in particular resulting in the inaccessibility of surgeries, screening tests, and therapies, the lack of which has detrimental consequences for the physical and mental health of many Canadians.

Beginning in mid-March, restrictions were introduced to the Canadian healthcare system as a means of preparing hospitals for a surge of COVID-19 cases similar to the rate of infection experienced in Italy. Implementing these restrictions meant that several healthcare procedures— such as routine checkups, screening tests, cardiac surgeries, and organ transplants—were cancelled. Once totalled “Almost 200,000 surgeries and other procedures…were shelved indefinitely as hospitals braced for a possible flood of COVID-19 patients. A deluge that never quite materialized.”2 The reality of Canada’s COVID-19 infection rate never matched the numbers predicted based on the data from other countries, yet healthcare resources were redistributed to combat potential cases of this one debilitating virus while a multitude of non- COVID-19 afflictions still affected Canadian patients.

With vast numbers of non-COVID-19 healthcare procedures indefinitely postponed, and actual COVID-19 cases not meeting predictions, hospitals across the country handled only a fraction of their potential patients. Ontario hospitals for example “that are typically at close to 100 per cent capacity were just 69 per cent full”3 by mid April and hospitals in British Columbia displayed similar statistics. If the COVID-19 pandemic had affected Canada differently, and consumed all available healthcare resources as predicted, then the restrictions on non-COVID-19 medical procedures would be justified. Now however, the question begs to be asked: when it became clear that Canada’s COVID-19 infection rate was not as severe as originally predicted, could the various governments have begun easing restrictions on healthcare, allowing hospitals to safely return to full capacity? For the multitudes of ailing non-COVID-19 patients, the timely return to prudent use of all available healthcare facilities is key to ensuring stabilization, healing, and a quality of life.

In the cases of patients whose conditions require ongoing care, restricted access to healthcare services means a backwards step in the mitigation of chronic pains and illnesses. Toronto-based family physician, Ritika Goel, describes a scenario in which healthcare services such as “physiotherapy, chiropractic, massage therapy, which are considered non-urgent but very hands-on. They’re generally being put on hold. Those things are understandable, it’s just that they also have these unintended consequences.” 4 Rehabilitative services, such as those mentioned by Goel, do not make the difference between life and death, but they do have indisputable positive impacts on the patients who depend on them. The governments’ restrictions aimed to prevent patients and healthcare providers from infecting one another, but chronic patients were instead afflicted by a potential backslide to the progress of their healing, and with no safe alternative being offered for consideration, the duty of care owed to this group of patients is unfulfilled.

Restricted access to healthcare also hindered the procedures necessary to heal patients afflicted with developing illnesses—cancer, for example—and other conditions that have the added complication of worsening over time. If left to its own devices, an early stage cancer that was operable at the time of diagnosis can metastasize, spreading throughout the body and becoming much more challenging, nigh impossible, to eradicate. Delaying surgeries results in the loss of a crucial window of treatment time, and carries life-threatening consequences for the patient in need. To avoid such lapses in care, the chances of a patient potentially catching (or spreading) COVID-19 in hospital must always be weighed against the certainties that without prompt medical intervention their illness will continue to cause the deterioration of their health.

Delaying and deferring medical treatment has an impact not only on the physical health of patients, but creates another lingering side effect: anxiety. Facing the realization of ill health is an upheaval in itself, and now with necessary treatments under intense restriction, strong feelings of frustration, hopelessness, as well as fear that treatment may not be made available in time, are all understandable responses. In such a way, the governments’ restrictions on healthcare procedures have endangered not only the physical health of existing patients, but their mental health as well.

While the governments’ restrictions on access to the healthcare sector carry obvious negative impacts for patients, those same restrictions spur difficult consequences for healthcare providers as well. Doctors, nurses, and other medical professionals across emergency, specialist, or general practice departments, work under stressful, high-stakes conditions at the best of times, spending long hours examining, diagnosing, monitoring, treating, operating, and medicating,

using their skills and knowledge to heal the sick and injured. Now, whether directly involved with COVID-19 patients, or determining how to provide non-COVID-19-related care when person-to-person contact is risky, all manner of healthcare personnel are faced with unprecedented challenges, one consequence of which is spiking levels of emotional duress.

Enduring states of emotional duress for extended periods of time can bring on a deterioration in mental health, symptoms of which include second guessing, errors in judgement, guilt, depression, and emotional burnout. One of the best known ways to combat emotional burnout is to rotate individuals from high stress scenarios to lower stress scenarios, thus allowing time for mental and emotional recuperation. Bearing in mind the pandemic situation, full terms of rest may not be optional, yet it should be considered that doctors, nurses, and other healthcare providers may benefit from rotating between COVID-19 cases and their usual work routines.

Less intense restrictions and actions to make routine procedures available could potentially benefit healthcare providers as well as patients, re-establishing some lost normalcy and providing an emotional break from newfound stresses.

If a sense of normalcy and mental/emotional rest are not allocated in due time, more severe consequences begin to develop, one of which is known as ‘moral injury’. Akin to the conditions experienced by war veterans, moral injury is described by Fardous Hosseiny, vice- president of research and policy at the Centre for Excellence on Post-Traumatic Stress Disorder, as “generally considered to include an experience that caused people moral conflict, guilt, shame and loss of trust in themselves as well as depression, anger or moral conflict.”5 The effects of moral injury have the potential to linger, and the doubt that doctors and nurses might feel in themselves as a result could undermine their ability to provide decisive and lifesaving care.

Ultimately, healthcare providers require care just as patients do, but with Canada’s healthcare
sector currently aligned to focus on COVID-19 before all else, neither of the aforementioned groups are being given the attention they need to thrive.

The moral injury experienced by healthcare providers and the anxiety experienced by waiting patients both point to the looming reality that mental healthcare is as necessary as physical healthcare in the current pandemic situation. A joint survey conducted by the Canadian Mental Health Association and the University of British Columbia asserts that the pandemic “is causing pronounced mental health concerns, including suicidal thoughts and feelings, in various subgroups of the population,”6 with parents, Indigenous peoples, people identifying as LGBTQ+, and people with existing mental illness at increased risk. The survey notes that as of May 2020 6% of Canadians have reported having suicidal thoughts, a notable increase from the 2.5% of Canadians who reported such thoughts in 2019 prior to COVID-19’s arrival in Canada.7 Both statistics point to a trend in worsening mental health that will spur a need for accessible mental healthcare in the near future.

The CMHA and UBC’s survey on mental health shows a concern for the emotional wellbeing of Canadians, however the support organized by the governments is a poor substitute for the proper mental healthcare that was impinged by recent restrictions. A fact sheet put out by the Government of Ontario suggesting resources for citizens experiencing mental health and addiction issues openly acknowledges that the pandemic made publicly funded mental health services and support groups difficult to access.8 The fact sheet lists services offering mental health support and of those services only one (primary care provider) can potentially be met face to face, while the other five are accessible either online or by telephone. The difficulty with digitally-based support services is that all interpersonal connection has been removed, greatly impacting the potential benefits of relationships and contact in the lives of people who rely on such services.

Good intentions stand behind the Government of Ontario’s fact sheet, but the impersonal nature of the listed services renders them only a fraction as effective as in-person therapies.

Helen Fishburn, Executive Director of the Canadian Mental Health Association in Waterloo- Wellington emphasizes that “one of the most important things to do when you have anxiety and depression is to have a very strong social connection and social network. And that’s been the one thing that’s disappeared.”9 Online and phone-in mental health services do not foster the social connection necessary to be effective, and unfortunately the majority of such services are catered to the general public’s pandemic-driven stresses, rather than providing an effective substitute for individuals with existing mental health troubles who’s usual therapies have been interrupted.

Changes to the Canadian healthcare system were inevitable to mitigate mass COVID-19 infections, yet one illness does not nullify all others. Patients suffering from non-COVID-19 ailments still require care, and the difficulties acquiring that basic right have left many with a lingering distrust of the healthcare sector. According to the Heart and Stroke Foundation of Canada “Ontario has reported a 30 per cent reduction and B.C. a 40 per cent drop in people presenting to emergency departments with STEMIs, the most serious type of heart attack.”10 People with life-threatening conditions are opting not to seek medical care, either out of fear of COVID-19 infection, or because restrictions on healthcare services have made hospitals unapproachable. Both scenarios reveal a lack of faith in the healthcare sector, and as much as the Canadian Health Authorities maintain that those in need of lifesaving care still have access to urgent procedures, patients admit to feeling abandoned11. These feelings of abandonment expose a harsh truth that the various governments of Canada failed to uphold their duty of care to the citizens in their jurisdictions.

Ultimately, the federal, provincial/territorial, and municipal levels of government in Canada all have a duty of care to the citizens they serve. In some cases, restrictions enacted as part of the nation-wide COVID-19 shutdown—such as the access to non-essential services— show the government upholding the spirit of duty of care by limiting the opportunities for vulnerable individuals to contract COVID-19. However, by also restricting the public’s access to surgeries, screening tests, therapies, and mental support offered by the healthcare sector, the governments inadvertently failed to practice their duty of care, leaving citizens in states of chronic pain, progressive disease, and heightened anxiety, making the limitations and delays placed on this crucial lifesaving sector unjustifiable actions that do more harm than good.


“Duty of Care,” Legal Dictionary, Accessed July 13, 2020, http://legaldictionary.net/duty-of- care.
Tom Blackwell. “Sacrificed in the Name of COVID Patients: Tens of Thousands Affected By Surgery Cancellations,” The National Post, Published May 9, 2020, Accessed July 30, 2020, http://nationalpost.com/health/sacrificed-in-the-name-of-covid-patients-tens-of- thousands-affected-by-surgery-cancellations.
Tom Blackwell. “Sacrificed in the Name of COVID Patients: Tens of Thousands Affected By Surgery Cancellations,” The National Post, Published May 9, 2020, Accessed July 30, 2020, http://nationalpost.com/health/sacrificed-in-the-name-of-covid-patients-tens-of- thousands-affected-by-surgery-cancellations.
Rachael D’Amore. “Collateral Damage: Wait Time, Cancellations, Hit Health Care Outside COVID-19,” Global News, Published March 30, 2020, Accessed July 30, 2020, http://globalnews.ca/news/6750377/coronavirus-canada-essential-health-care/.
Camille Bains. “Essential Workers During COVID-19 Susceptible to ‘Moral Injury’ and PTSD, Hospital Says,” CBC News, The Canadian Press, Published July 7, 2020, Accessed July 29, 2020, http://www.cbc.ca/news/health/covid-stress-essential-workers- 1.5641405.
“Warning Signs: More Canadians Thinking About Suicide During Pandemic,” The Canadian Mental Health Association, Published June 25, 2020, Accessed July 29, 2020, http://cmha.ca/news/warning-signs-more-canadians-thinking-about-suicide-during- pandemic.
“Warning Signs: More Canadians Thinking About Suicide During Pandemic,” The Canadian Mental Health Association, Published June 25, 2020, Accessed July 29, 2020, http://cmha.ca/news/warning-signs-more-canadians-thinking-about-suicide-during- pandemic.
“COVID-19 Fact Sheet: Resources for Ontarians Experiencing Mental Health and Addiction Issues During The Pandemic.” Government of Ontario, Ministry of Health, Accessed 29 July 2020, www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/resources_ontaria ns_experiencing_mha.pdf.
Jenn Jefferys. “Mental Health Concerns ‘Very Real’ During Pandemic,” The Record, Published June 11, 2020, Accessed July 29, 2020, http://www.therecord.com/opinion/2020/06/11/mental-health-concerns-very-real-during- pandemic.html.
Tom Blackwell. “Sacrificed in the Name of COVID Patients: Tens of Thousands Affected By Surgery Cancellations,” The National Post, Published May 9, 2020, Accessed July 30, 2020, http://nationalpost.com/health/sacrificed-in-the-name-of-covid-patients-tens-of- thousands-affected-by-surgery-cancellations.
Tom Blackwell. “Sacrificed in the Name of COVID Patients: Tens of Thousands Affected By Surgery Cancellations,” National Post, Published May 9, 2020, Accessed July 30, 2020,
http://nationalpost.com/health/sacrificed-in-the-name-of-covid-patients-tens-of- thousands-affected-by-surgery-cancellations.


The opinions expressed by the essay winners are solely those of the authors and do not necessarily those of the Justice Centre for Constitutional Freedoms.