One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry

March 29, 2021

            SUMMARY

It was one year ago yesterday that the Ford Government secretly sent Ontario hospitals a deeply-flawed critical care triage protocol, directing how hospitals should decide who will be refused life-saving critical care if hospitals get overloaded by the COVID-19pandemic. It was one year ago next week that the disability community learned of this, and made public the fact that the Government’s critical care triage protocol discriminates against some patients with disabilities.

Where are we one year later? The COVID-19 pandemic is still upon us. Despite the good news of COVID-19 vaccines, waves of new infections continue to push Ontario’s hospitals to the limit. The risk of Ontario having to ration critical care remains a real one.

As well, one year later, the Ford Government wrongly continues to deal with this issue in secret, and without itself consulting the public or making public what it is doing. It continues to deny responsibility in this area, sloughing it off on the medical profession. It continues to sit back while an updated critical care triage protocol is in place, that would continue to discriminate against some patients with disabilities.

Oddly, the health care web page of the AODA Alliance website continues to be the best, if not the only place to go to find public copies of important documents in this area, such as Ontario’s January 13, 2021 Critical Care Triage Protocol, and the September 11, 2020 report of the Government’s Bioethics Table. News reporters continue to tell us that they cannot get straight answers, and at times, cannot get any answers at all, from the Ford Government on this critical care triage issue.

Even though too many news outlets have failed to give this issue the attention it deserves, there have been a few recent and important news reports. Below, we set out:

* The March 29, 29, 2021 Globe and Mail report on the critical care triage issue;

* The February 7, 2021 Globe and Mail report on the critical care triage issue; and

* The February 8, 2021 Lawyer’s Daily report on broader health care barriers facing people with disabilities during COVID-19, which situates the critical care triage discrimination against some patients with disabilities into that broader issue.

We offer four reflections on those reports:

  1. The cruel irony has not been lost on many people with disabilities that at the same time as people with disabilities must battle against the life-threatening dangers facing them if Ontario undertakes critical care triage, disability advocates have also been campaigning against Bill C-7, controversial new federal legislation that substantially liberalizes medical assistance in dying. There has been this increased governmental focus on ending the lives of people with disabilities, without comparable governmental efforts to improve the opportunities for living with a disability.
  1. As the Government itself hides, Dr. James Downar continues in effect to play the role of the Government’s chief defender on this critical care triage issue. He appears indistinguishable from a cabinet minister’s spokesperson. He has been credited with being an author, if not the key author, of the January 13, 2021 Critical Care Triage Protocol which embodies seriously harmful disability discrimination. As a member of the Government’s advisory Bioethics Table, he was a key player during a series of virtual meetings last summer, where the AODA Alliance and certain other disability advocates and experts voiced concerns in this area.

Dr. Downar’s statements in the Government’s defence in the March 29, 2021 article below constitute a seriously erroneous rejection of key points of input we presented to him and his Bioethics Table colleagues on these disability issues. That article states:

“He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.”

Whether or not the critical care triage protocol was intended as he stated, we and other disability advocates have shown that the protocol has the clear effect of discriminating because of disability. It is the effect of the protocol and not its intent that determines whether it is a violation of the Charter of Rights and/or the Ontario Human Rights Code. Dr. Downar’s defence provides no defence.

  1. Both Globe and Mail articles report on advocacy by some doctors to be given the power to pull the plug on critical care patients over their objection, taking away critical care they are already receiving, and thereby endangering their life. No one has answered our objection that Ontario cannot authorize this without the doctor running up against Canada’s Criminal Code homicide provisions. This piles onto vulnerable people with disabilities yet another danger to their lives, during a pandemic where they have disproportionately been at risk of getting COVID-19and dying from it.
  1. The Globe and Mail’s February 7, 2021 article quotes a bioethicist in defence of the January 13, 2021 Critical Care Triage Protocol, who claims it is designed to protect human rights. The title “bioethicist” implies great expertise in this area. However, there is cause for concern.

There is no public regulation of who can call themselves a bioethicist. There appears to be no self-governing body for bioethicists, and no code of ethics for bioethicists. We have learned through the critical care triage issue that a person does not need to have any training in law or human rights, to call themselves a bioethicist. Indeed, some make statements on basic constitutional and human rights that reflect a demonstrable lack of knowledge in these important areas.

For more background in this area, check out the AODA Alliance’s health care web page. Also, check out the AODA Alliance’s February 25, 2021 report entitled: “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals”.

            MORE DETAILS

Globe and Mail March 29, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-covid-19-surge-could-force-doctors-to-use-online-calculator-to/

Ontario’s COVID-19 triage plan includes online care calculator

By JEFF GRAY

Staff

If COVID-19’s surging third wave overwhelms Ontario’s hospitals, doctors could soon be forced to use an emergency triage protocol that includes an online calculator to help decide who gets lifesaving care and who does not.

The website, which prompts physicians to key in a critical patient’s diagnosis in order to estimate their chances of survival, is part of an emergency procedure drafted to help doctors make what would normally be unthinkable decisions. The protocol has been distributed to hospitals. But it has never officially been made public.

The province has loosened some pandemic restrictions in recent weeks, even as daily new infections still shoot upward, with more than 2,448 recorded on Sunday and 19 deaths. Ontario counted 390 COVID-19 patients in its intensive-care units, not far from the peak of 420 hit in the second wave of the virus in January.

While the provincial government says it has added hospital capacity, the Ontario Hospital Association warned last Friday that the province’s critical-care system was reaching its “saturation point” and that soon “hospitals will be under extraordinary pressure to try and ensure equitable access to lifesaving critical care.”

To deal with the onslaught, ICUs have been transferring critical patients from packed facilities to those elsewhere that still have space. Patients are being shipped via ambulance helicopter from Toronto to as far away as Kingston. Field hospitals have also sprung up around several health care facilities, including Toronto’s Sunnybrook Health Sciences Centre.

But more than a year into a pandemic that put hospitals in New York and Italy over the brink, the Ontario government has kept almost all planning for such a worst-case scenario out of the public eye.

By contrast, Quebec held open consultations on its emergency triage protocol months ago.

Meanwhile, the Ontario Human Rights Commission and disability rights groups have raised objections for months, warning that leaked drafts of Ontario’s protocol discriminate unfairly against older and disabled people.

Both a January version of the protocol, developed by the group that co-ordinates critical care across the province, and the online calculation tool have only come to light after being obtained by the Accessibility for Ontarians with Disabilities Act Alliance, a disability rights group.

The AODAA has also obtained a “framework document,” prepared by the government’s bioethics table, a committee of experts that has been wrestling with the triage issue for the past year.

The province’s Ministry of Health has said only that the triage protocol, known as an “emergency standard of care,” was drafted by the medical profession and not approved by the ministry.

The notion of an online triage aide may sound strange, but nothing about hospitals swamped by COVID-19 would be normal. The “short-term mortality risk” calculator would allow physicians to type data on the severity of a patient’s conditions – cancer, trauma, stroke and so on – to help come up with an estimated chance of survival after 12 months. Those with a higher chance of survival would be given priority for ICU spots. Decisions would be made by two doctors, not one alone.

David Lepofsky, a lawyer and chairman of the AODAA, said it’s the wrong approach.

“It creates the false impression that this can be an objective [task]. Just type in the data, press the button, the computer will tell you who lives and who dies,” Mr. Lepofsky said in an interview.

He takes issue with the protocol’s reliance on a metric for use on those over 65 known as the clinical frailty scale, which measures a patient’s ability to perform various everyday tasks.

That, he argues, devalues the lives of disabled people.

James Downar, a specialist in critical care at The Ottawa Hospital and a drafter of the triage plan who sits on the province’s bioethics table, said the online calculator is no different than the paper version that doctors can also use under the protocol.

He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.

“None of us want to be in a triage scenario,” Dr. Downar said.

“The purpose of a triage system is to reduce the number of preventable deaths and reduce the number of people who are denied critical care.”

Dr. Downar said he believed it would be best to make the triage plans public.

A spokeswoman for Ontario Health Minister Christine Elliott referred questions about the protocol to Jennifer Gibson, the cochair of the government’s bioethics table and director of the University of Toronto Joint Centre for Bioethics.

Dr. Gibson said the bioethics table has been in discussions with the Ontario Human Rights Commission on addressing its concerns with the triage protocol.

She also said the table has previously recommended an open public consultation on the triage issue – but that the government had so far not acted on this idea.

“We provide advice. And that advice may be taken or it may not be taken,” Dr. Gibson said.

Even with ICUs at a tipping point, Dr. Gibson said she didn’t think it was too late to start a more open discussion of the issues at stake, to build public trust.

Earlier this month, the chief commissioner of Ontario’s Human Rights Commission, Ena Chadha, wrote to Ms. Elliott to reiterate concerns about the protocol, the potential for discrimination against the disabled and a lack of consultation and transparency around it. Ms. Chadha and other groups have been at odds with the government over the issue since last March.

“We have to develop a framework that is equitable, with human-rights considerations being paramount. Which means it can’t be built on ageist or ableist notions, or assumptions about quality of life,” she said. “This is the problem.”

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said ICU doctors have been familiarized with the emergency triage protocol – even though the government says it remains unapproved – and that committees at hospitals across the province to oversee it have been set up. He held up a paper triage form in a Twitter video on Friday, urging Premier Doug Ford to tighten public-health measures.

He also criticized the government for so far declining to say it would, if needed, issue an order to override Ontario’s health care legislation and allow for the withdrawal of lifesaving care from patients already in the ICU who are unlikely to survive. Under the plan as it stands now, only new patients would face ICU triage.

It’s unclear, Dr. Warner warned, how the plans would roll out in what would be an unprecedented crisis.

“This could be battlefield medicine,” he said. “We may end up having to improvise.”

 The Globe and Mail February 7, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontarios-life-and-death-emergency-triage-protocol-remains-a-work-in/

News

Ontario’s life-and-death triage protocol still in progress

By JEFF GRAY

Staff

If a third wave of COVID-19 overwhelms Ontario hospitals, and intensive care units run out of beds, the province’s doctors could be forced to make previously unthinkable decisions about who gets access to life-saving treatment. Precisely how they would do that remains largely under wraps even as concern mounts about the spread of more contagious new variants of the virus.

Ontario has cancelled procedures, added beds and helicoptered patients from hotspots to less-crowded hospitals to avoid the worst. But its contingency planning for how doctors would cope with an uncontainable COVID-19 surge has occurred largely behind closed doors. That has raised alarms with disability rights activists and the Ontario Human Rights Commission, who warn hospital triage protocols must guard against discrimination.

Meanwhile, some doctors say a draft “emergency standard of care” distributed to hospitals last month – but not publicly released – does not go far enough.

They say it lacks a grim but necessary provision: The power to unplug patients who are unlikely to survive from life support without consent to make room for those with a better chance.

Not allowing this kind of triage, some doctors argue, could create a kind of first-come, firstserved system, in which patients who might have lived are denied access to scarce ICU beds because others who have little hope already occupy them. More people, they say, would end up dying.

The problem is a legal one. In Ontario, removing life support without the consent of the patient or their next of kin or designated decision maker has been barred since the Supreme Court of Canada decision ruled in 2013 that the province’s Health Care Consent Act applies to both providing and withdrawing care.

The decision did not affect other provinces.

Quebec’s triage protocol, which has been made public, would allow doctors to apply a set of criteria to remove patients from life support without consent if needed. Other jurisdictions, including New York, have had to invoke triage protocols, formal or informal, to deal with tidal waves of COVID-19 cases.

Ontario’s COVID-19 bioethics table, made up of critical-care doctors and academics, recommended in a September “framework” document that the government issue an emergency order “related to any aspect [of the triage plans] requiring a deviation from the Health Care Consent Act.” It also called for an order to provide liability protection for doctors. The document laid out the principles for triaging patients in a COVID-19 surge.

In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.”

The draft emergency standard of care distributed to hospitals would classify new patients needing life support based on how likely they are to survive for 12 months. But those already inside the ICU, no matter how small their chance of recovery, would stay put.

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said the government has to issue an emergency order to fix an unfair triage plan that would leave more people dead. But he said he realizes politicians would rather not confront the issue before it is necessary: “I understand that this is a nuclear football for any government.”

Last month, with more than 400 COVID-19 patients in ICUs across the province, hospitals raised frantic alarms. But with the recent slowdown in infections, numbers have declined.

On Friday, the province said it had 325 patients in its ICUs with the virus.

Critics say Ontario is wrong to keep the life-and-death deliberations quiet. Disability rights activists obtained leaked copies of the framework and the proposed standard of care and posted them online. Neither of the cochairs of the bioethics table responded to requests for comment for this article.

“That’s just the way Doug Ford likes to do things, behind closed doors, and in secret,” Opposition NDP Leader Andrea Horwath said. “But on something like this, literally life-and-death decisions … there’s just no excuse to not make these kinds of policy decisions the result of massive engagement with Ontarians.”

Disability rights activists say the current proposal would discriminate against the disabled.

Some hold that doctors should never remove a patient from life support without consent.

“That is a point that we shouldn’t have to get to,” said Mariam Shanouda, a lawyer with the ARCH Disability Law Centre, who argues the government must do more to ensure such drastic measures are never needed.

David Lepofsky, a lawyer and chairman of the Accessibility for Ontarians with Disabilities Act Alliance, said the triage protocol lacks an arm’s-length process to appeal decisions, which doctors say is not compatible with acting quickly in a crisis. He also questions the government’s legal authority to issue an emergency order that would allow doctors to remove a patient from life support without consent.

“Any doctor that would consider doing this, I hope they’ve got a lawyer,” Mr. Lepofsky said.

Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.

Dr. Frolic said the government needs to assure ICU doctors that the protocol and an emergency order are in place long before infections begin to spike again, so that doctors – and the public – are prepared: “That’s not necessarily something that can turn on overnight.”

The Lawyer’s Daily February 8, 2021

Originally posted at https://www.thelawyersdaily.ca/articles/24331/research-project-seeks-to-understand-covid-19-justice-barriers-for-people-who-live-with-disabilities

Research project seeks to understand COVID-19 justice barriers for people who live with disabilities

Researchers at a western Canada university have embarked on studies into how measures to combat COVID-19 have impacted access to justice for Ontarians with disabilities living in care centres and people with mental disorders in British Columbia’s prisons and psychiatric facilities.

Thompson Rivers University (TRU) law professor Dr. Ruby Dhand is one of the researchers who in January launched the two projects. Each is being run in collaboration with various legal and advocacy groups. The goal, to use legal and scientific research to promote legislative change.

The Ontario project, Dhand told The Lawyer’s Daily, will also involve a TRU science professor and a law professor from the University of Windsor and will be run in collaboration with the Toronto-based ARCH Disability Law Centre (ARCH).

According to a description on a TRU webpage, the project will examine “COVID-19 barriers to justice for those who live with disabilities in these congregate care settings,” such as long-term care homes, group homes and assisted living facilities.

Dhand said restrictions put in place to combat the health crisis have resulted in a lack of care, community supports and “communication devices,” as well as fallout from visitor bans and reductions in standard services.

“We’ve recognized that people with disabilities, as this pandemic has evolved, who are living in congregate care settings … have really been disproportionately impacted,” said Dhand. “It’s become clear that over 80 per cent of these COVID-19 related deaths have occurred in these long-term care facilities. … They are experiencing complex forms of discrimination.

“[The] purpose of this research to highlight those voices, because this will be a quotative, multidisciplinary research project. … We recognize that, throughout this pandemic, the voices of people with disabilities have really be silenced, and it doesn’t seem like they’ve been prioritized.”

Dhand also talked about the controversial emergency “triage” protocol put together by the province, which would reportedly allow doctors in intensive care units to decide who gets a bed and who doesn’t in the event hospitals become overwhelmed by the health crisis.

“A clear access to justice issue has also been Ontario’s triage protocols,” Dhand said. “As a result of the triage protocols, a person with a disability will be deprioritized. The protocols state that they will be deprioritized for a ventilator [if their] future quality of life is determined to be poor because of their disability. So, disability advocates have raised concerns about the discriminatory impact of the triage protocols on people with disability in congregate care settings. … Access to health care is an access to justice issue.”

In January, ARCH issued a statement about possible temporary suspensions to Ontario health-care legislation that “would effectively permit doctors to withdraw treatment from a patient without the consent of the patient or family” if hospitals end up having “more patients than resources.” This would accompany the province’s triage protocol, ARCH goes on to state.

The Accessibility for Ontarians With Disabilities Act Alliance recently said that such a thing would be like “recklessly tap-dancing in a constitutional minefield.”

Dhand hopes the research she and the others conduct will help prompt legislative change.

“This proposed partnership comes at a critical moment in ARCH’s advocacy efforts, and we want to be able to help; we want to be able to have this research create disability-informed responses to the pandemic and post-pandemic planning.”

Turning to the second research project, Dhand says this B.C.-based initiative is examining COVID-19 transmission risks and barriers to justice for those being detained in the province’s mental health facilities, prisons and detention centres.

It is in collaboration with a number of community organizations, including the West Coast Justice Society and the Elizabeth Fry Society.

“People with mental health and substance use issues who are in mental health facilities and prisons and detention centres have an increased potential of death,” said Dhand. “They experience much higher likelihood of getting COVID-19 because these are congregate care facilities, where people live in crowded and confined spaces with high transmission risk. And there is also a lack of resources [and] a lack of [personal protective equipment]. And people with mental health and substance use issues have already pre-existing health issues and vulnerabilities.”

Dhand said they can also “experience consent and capacity issues” and, in some cases, “may not even understand what the public health measures mean.”

She also cites “a lack of community-based care and diversion options” and an increase in the use of solitary confinement and lockdowns since the start of the pandemic.

Both projects will run for up to two years, Dhand said.



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Saskatoon medically-assisted dying facility on hold pending Bill C-7 – Saskatoon


Jae Blakley is working to improve access to medical assistance in dying — or MAID — in Saskatoon after years of experience working in palliative care.

“I’ve seen a lot of death… and not all of it has been good death,” he said.

Last February he started fundraising for a new home-like facility for MAID called the Saskatoon Cider House. A few thousand dollars have trickled in since.

Read more:
Saskatchewan team working to raise $1M for medical assistance in dying facility

Based on support that’s been put forward for the palliative care unit at St. Paul’s Hospital and Hospice at Glengarda, there certainly is an appetite for expanding the continuum of palliative and end of life care and we certainly fit into that,” Blakley said. 

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Blakley said his plans for the Cider House hinge on Bill C-7 which is still before parliament.

The proposed changes in Bill-C7 would expand access to MAID to people who are suffering unbearable pain but are not dying.

That could include those with an incurable illness or disability.

Advocates worry that this means people with disabilities may seek MAID due to inadequate access to supports including housing, adequate financial aid and health care.

Read more:
Feds gets another month to expand access to assisted dying as bill stalls in the Commons

“For everybody else who suffers disproportionately in Canadian society, we have suicide intervention [and] prevention and we essentially say to people ‘we believe your lives are worth saving, and we want to help you,’” said Inclusion Canada executive vice-president Krista Carr.

“But for people with a disability, in effect we’re saying, ‘Well, for you, there must be nothing worse than living with a disability, and having a disability must be a fate worse than death.’” 

Dying with Dignity Canada says this could actually put MAID further out of reach for Canadians due to some of the proposed changes that would extend the process to apply and receive MAID services.

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“I do think there will be a dropout of assessors and providers who will not want to provide under the more rigid conditions of Bill C-7,” Dying with Dignity Canada board member Chantal Perrot said Thursday.

Provincial health statistics show 154 people received medical assistance in dying last year in Saskatchewan — up from 97 in 2019 and 85 in 2018.

Read more:
Saskatchewan MAID adviser gives stamp of approval to new assisted death legislation

Saskatchewan’s health ministry said in a statement to Global News it is not considering additional options for MAID provision like the Cider House, saying, in part:

“The provincial program is meeting current demand for services, and we will continue to monitor the volumes of patients receiving medical assistance in dying, any barriers to access, and make adjustments, as appropriate.”

Blakley is waiting to receive charitable status for Saskatoon Cider House in preparation of Bill C-7’s outcome.

“I want to get us to a place in society where we can have better deaths than I think we’re dealing with right now,” Blakley said.


Click to play video 'Saskatoon one step closer to brick-and-mortar MAID facility'







Saskatoon one step closer to brick-and-mortar MAID facility


Saskatoon one step closer to brick-and-mortar MAID facility – Feb 17, 2020




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Ontario Human Rights Commission Echoes More Serious Concerns with the Ontario Critical Care Triage Plan – Will the Ford Government Start to Listen This Time?


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Ontario Human Rights Commission Echoes More Serious Concerns with the Ontario Critical Care Triage Plan – Will the Ford Government Start to Listen This Time?

March 2, 2021

            SUMMARY

The pressure on the Ford Government mounts even more to open up, publicly discuss and substantially revise its seriously flawed plans for rationing or triage of critical medical care if the COVID-19 pandemic overloads hospitals. On March 1, 2021, the Ontario Human Rights Commission wrote the Ford Government a strong letter, set out below. It echoes a number of our serious problems with the Ontario critical care triage plan. It specifically references concerns that have been raised by the AODA Alliance and the ARCH Disability Law Centre.

We commend the Ontario Human Rights Commission for this letter. We call on the Ford Government to come out of hiding, and address the serious concerns that we and the Ontario Human Rights Commission are raising.

If there must be a critical care triage plan and protocol, it must be legally valid and constitutional. It is not good enough for anyone to duck our concerns by simply taking the position that a critical care triage plan is needed. That one is needed does not justify its discriminating because of disability contrary to the Ontario Human Rights Code and Charter of Rights, and its failing to provide due process to patients whose very lives are in jeopardy.

There is an urgent need for frontline doctors, being trained to conduct critical care triage, to be alerted to the serious human rights and constitutional violations that they could commit. As the AODA Alliance’s February 25, 2021 report on Ontario’s critical care triage plan reveals, a recent January 23, 2021 webinar for over 1,100 frontline doctors completely failed to alert those trainees to these issues. It misleadingly told those trainees that the Ontario Human Rights Commission was consulted on the development of Ontario’s critical care triage plan, without also alerting them that the Commission (along with community organizations like the AODA Alliance) raised serious human rights objections to that plan. The Commission’s letter, set out below, is yet more proof that such misleading training for critical care triage doctors risks real harm to patients with disabilities.

The Ontario Human Rights Commission’s letter refers to an earlier written submission on critical care triage that the Commission sent the Government-appointed Bioethics Table last December, and to a summary that the Bioethics Table prepared of a consultative roundtable that the Bioethics Table held on December 17, 2020 (in which the AODA Alliance participated). We set that summary out below, as well as the Ontario Human Rights Commission’s written submission that supplemented it, included as an appendix to that summary. We want to give you some information to help you read the summary of the December 17, 2020 roundtable that the Bioethics Table prepared:

  1. Several key points that the AODA Alliance raised at that December 17, 2020 roundtable are set out in greater detail in the AODA Alliance’s unanswered December 17, 2020 letter to the Minister of Health.
  1. The overwhelming point that came from the community groups at that roundtable made was that they had not had time to prepare for that rushed meeting, but had serious human rights concerns with the critical care framework we were shown. Since then, no such consultation has been held with community groups like the AODA Alliance by the Government, its Bioethics Table or its Ontario Critical Care COVID Command Centre. This is so even though the Government and its proxies and defenders in the medical world repeatedly claim that consultations are ongoing on the Ontario critical care triage plan.
  1. As it turns out, we now know that the Ford Government and its Ontario Critical Care COVID Command Centre had already taken important steps towards its critical care triage plan by the time that the December 17, 2020 roundtable was being held. These steps were likely known to the Bioethics Table participants, but were not revealed to the AODA Alliance and other community groups taking part in that discussion.

For more background, check out:

  1. The AODA Alliance’s February 25, 2021 report revealing new serious problems with the Ontario critical care triage plan, and its February 26, 2021 news release on that report.
  1. The January 13, 2021 Ontario Critical Care Triage Protocol, which the Government has never revealed, and which we believe is only publicly downloadable from the AODA Alliance website.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  2. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

 March 1, 2021 Letter from the Ontario Human Rights Commission to the Ontario Government

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

RE: Follow-up on critical care triage – Ongoing human rights concerns and the need for public consultation

I hope this letter finds you well. Thank you for speaking with me in December 2020 and confirming your commitment to human rights and your interest in ensuring that our stakeholders’ concerns are appropriately heard. As you know, since April 2020, the Ontario Human Rights Commission (OHRC) has voiced the importance of respecting human rights when triaging critical care during the pandemic. The OHRC has sought to promote an equity-sensitive approach that is fair, transparent and founded on human rights principles.

Since last year, the OHRC has called on the Government to publicly release and consult with human rights stakeholders on various iterations of the critical care triage protocol and framework. Throughout this time, the OHRC has undertaken all best efforts to support the COVID-19 Bioethics Table in its work to revise a triage framework that respects human rights.

We are writing to highlight certain issues about the most recent triage-related documents that the Ontario Critical Care COVID-19 Command Centre has disseminated to health-care administrators and, once again, to offer our support to your Ministry in hopes of ensuring that the concerns and interests of human rights stakeholders will be heard.

As you know, last December, the OHRC worked collaboratively with the COVID-19 Bioethics Table to facilitate a consultation with human rights stakeholders on the September 11 version of the proposed triage framework document. The Bioethics Table prepared a summary of the meeting and circulated it to participants. The summary also included an appendix prepared by the OHRC summarizing its recommendations for the Bioethics Table and your Ministry’s consideration.

Early this year, the OHRC obtained a copy of the Emergency Standard of Care dated January 13, 2021. We also obtained copies of related supplementary materials on the Emergency Standard of Care:

Template letters to be sent to patients informing them they will not receive critical care and/or that critical care is being withdrawn without their consent

An online short-term mortality risk calculator with digitized clinical tools to assess mortality

Critical Care Services Ontario’s January 23, 2021, webinar and slide deck to help disseminate the Emergency Standard of Care within the sector.

While the OHRC appreciates that the Emergency Standard of Care refers to human rights principles and obligations in its introduction, we remain concerned about the following issues that we raised earlier:

The reliance on a 12-month predicted mortality timeline is excessive and risks discriminatory biases

The use of clinical assessment tools not validated for critical care triage also risks discriminatory bias

The need to account for the human rights duty to accommodate throughout the decision-making process including when assessing a patient’s predicted mortality

The need to ensure the legal right to due process and transparency for triaging decisions, including an effective mechanism for the right to appeal a decision that disproportionately impacts the right to life of vulnerable groups

The need to ensure appropriate human rights training and guidance for healthcare service providers so that they can implement the standard equitably and effectively.

Further, while the OHRC appreciates that the Emergency Standard of Care is intended to be an “evergreen” document, we are concerned that this document and supplementary materials (including the online short-term mortality risk calculator) are being shared within the health-care sector with potentially discriminatory content and without sufficient public input or consultation. We are also concerned that the previous March 2020 version of the protocol, which was intended to be rescinded in October 2020, may still be in circulation and relied upon by health-care partners, particularly given something to this effect was noted in the above-cited January 23, 2021, webinar regarding emergency/ambulance services.

Stakeholders – including ARCH Disability Law Centre and the AODA Alliance – have expressed serious concerns that the government may act on calls for an emergency order to suspend certain provisions of the Health Care Consent Act, allowing doctors to withdraw patients from critical care without their consent, or that of their families or substitute decision-makers, and without independent oversight.

The OHRC understands that granting doctors such decision-making power is an extraordinary measure and one the Government will not take lightly. The OHRC also understands that your Ministry wishes to ensure that human rights stakeholders concerns are properly considered and understood. In light of this, we cannot overstate that even if the Government does not issue an emergency order, the lack of transparency regarding the status of the Emergency Standard of Care, plans regarding next steps and questions regarding due process are causing grave concern among vulnerable groups. We believe these concerns must be addressed immediately, particularly given the existence of new, highly transmissible variants of COVID-19.

The OHRC believes that now is the time to act to make sure that frameworks and protocols for triage decisions that are consistent with the Ontario Human Rights Code are in place before a potential third wave overwhelms Ontario’s health-care system.

We call on the Government to publicly release and consult human rights stakeholders including the OHRC on the latest versions of the proposed triage framework and the Emergency Standard of Care. There is an urgent need to make sure that vulnerable groups who may be disproportionately affected have an opportunity to share their perspectives while there is still time, and before the proposed triage framework and/or Emergency Standard of Care and related materials are finalized.

Sincerely,

Ena Chadha, LL.B., LL.M.

Chief Commissioner

cc:        Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

Jennifer Gibson, Co-Chair, COVID-19 Bioethics Table

Dr. Andrew Baker, Incident Commander, Ontario Critical Care COVID-19 Command Centre

Hon. Doug Downey, Attorney General

David Corbett, Deputy Attorney General, Ministry of the Attorney General

OHRC Commissioners

 Ontario Government’s Bioethics Table Summary of Its December 17 2020 Roundtable on Critical Care Triage

Stakeholder Roundtable

 Critical Care Triage During Major Surge in the COVID-19 Pandemic:

Proposed Framework for Ontario

Summary Report

Prepared by:

Jennifer Gibson, PhD (Co-Chair, Bioethics Table)

Dianne Godkin, PhD (Co-Chair, Bioethics Table)

21 December 2020

 

Introduction

On December 17th, the Ontario COVID-19 Bioethics Table (the “Bioethics Table”) and the Ontario Human Rights Commission (OHRC) co-convened a roundtable with human rights stakeholders (Appendix 1) to review and provide feedback on the Ontario COVID-19 Bioethics Table’s Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (the “Proposed Framework”). The Proposed Framework was developed iteratively from March to August 2020 (Appendix 2) and submitted with recommendations for next steps to the Ministry of Health and Ontario Health in September 2020. An earlier version of the framework, which had been developed and released to Ontario hospitals in March 2020, was never implemented and was subsequently rescinded on October 29th.

The roundtable was facilitated by Dr. Kwame McKenzie (CEO, Wellesley Institute). Representatives from the Office of the Minister of Health, the Ministry of Health, Ontario Health and the COVID-19 Ontario Critical Care Command Centre were in attendance as observers. As laid out by Dr. McKenzie, the roundtable aimed to ensure: 1) that all human rights stakeholders were able to share their views on the Proposed Framework; 2) that their concerns were heard by the Ministry, Ontario Health, Critical Care Command Centre representatives and by Bioethics Table members; and 3) that there was clarity on how the Proposed Framework could be improved. Roundtable participants were also provided with links to recent publications on the topic of critical care triage and associated frameworks/protocols in Canada and elsewhere (Appendix 3).

 

This report provides a high-level summary of key issues and concerns raised by roundtable participants and potential actions identified by roundtable participants to address these issues and concerns. It is not exhaustive of all that was discussed at the roundtable. It is intended to reflect the most urgent issues and concerns around which there was broad agreement among roundtable participants in the immediate context of Wave 2 of the COVID-19 pandemic. The OHRC has also provided an outline of its recommendations (Appendix 4). It was acknowledged by all that there are systemic health inequities that will require long-term solutions that are outside of the scope of critical care triage during a pandemic.

 

Key Issues/Concerns and Potential Actions

Roundtable participants stressed the paramount importance of a non-discriminatory, equitable, and culturally safe critical care triage approach. COVID-19 has already had a disproportionate negative impact on many of the communities represented by roundtable participants. Pre-existing historical and social inequities in health outcomes and negative experiences of the healthcare system further exacerbate these impacts. Some may experience intersectionality, the cumulative impact of belonging to more than one disadvantaged group (e.g., a racialized person who also has a disability). For Indigenous communities, it is not just a matter of individual survival, but of cultural survival if an Indigenous knowledge keeper becomes ill and dies. Participants raised concerns that there has been limited engagement of disability, older adults, Indigenous, Black and other racialized communities, arguably those who have been most significantly impacted during the pandemic, in all aspects of pandemic planning and that this has resulted in unsatisfactory and unsafe care. The possibility of triage raises significant fears that these historical and social inequities will be magnified if actions are not taken to implement a critical care triage process that is non-discriminatory. Participants were very concerned that they only had one week to review the Proposed Framework and had difficulty understanding some aspects of the document. Consequently, further engagement and stakeholder consultation is required. A general observation of the Proposed Framework raised by participants is that is not sufficiently prescriptive in describing what must be done.

The following Table summarizes the most urgent issues and concerns and potential actions identified by roundtable participants:

1.     Human Rights and Non-Discrimination as Legal Obligations
 

Issue: Roundtable participants need greater assurance that decisions related to critical care triage will be made in alignment with human rights codes and will be non-discriminatory.

Potential actions:

Ø  Articulate non-discrimination/human rights as the primary overarching legal obligation used to guide the critical care triage process.

2.     Equity as a Positive Obligation
 

Issue: Although equity is identified as an important ethical principle in the Proposed Framework, roundtable participants emphasized the need for a positive obligation to promote equity and for concreteness and clarity on how equity would actually be enacted in practice. It was recognized that under conditions of great stress during a major surge in demand for critical care, unconscious bias is likely to be activated unless steps are taken to support clinicians in promoting equity.

Potential actions:

Ø  Develop an equity-based checklist tool that healthcare providers must review and consider during the assessment stage of the triage process to help them account for the impact of social determinants of health and pre-existing co-morbidities due to social and historical inequities in the care of their patients.

Ø  Make requirements for accommodations for persons with disabilities or to address communication barriers explicit, including allowing a support person to be present as needed.

Ø  Ensure all who are involved in critical care triage process receive anti-racism, anti-bias (e.g., anti-ageism, anti-ableism), and Indigenous cultural safety training and/or have access to tools and resources (e.g., see checklist above) to minimize the risk of unconscious bias.

3.     Legal Framework for Critical Care Triage During a Major Surge
 

Issue: Critical care triage during a major surge would deviate from current legal and regulatory standards, particularly in relation to withdrawal of life-sustaining treatment without consent. Roundtable participants underscored the need for a legal framework to justify the critical care triage approach and to protect both healthcare providers and patients. Any liability protections for healthcare providers should require that they have acted in accordance with this legal framework and with the Ontario Human Rights Code.

Potential actions:

Ø  Develop a legal framework for critical care during a major surge, including key elements of due process.

4.     Critical Care Triage Decision-making Process and Clinical Assessment Tools
 

Issue: Roundtable participants expressed a need for critical care triage decision-making processes and clinical assessment tools to be outlined in greater detail and communicated in a transparent manner to patients and the public. While there was general agreement that for the purposes of triage decisions, clinical assessment should focus on predicted short-term mortality risk, specific concerns were raised about using 12-months as the time frame for predicted short-term mortality and about the validity of the tools for Indigenous persons and other marginalized persons. Roundtable participants also emphasized the need for critical care triage decisions to be transparent.

Potential actions:

Ø  Engage stakeholders in the identification/adaptation of clinical tools to ensure they are culturally appropriate.

Ø  Reduce the duration of short-term predicted mortality risk from 12 months to a lesser time period.

Ø  Include individuals (e.g., community leaders) outside of the medical profession in the implementation of the critical care triage decision-making process (e.g., as supports to patients in clinical decision-making; as members of the Triage Teams described in the Proposed Framework; as members of appeals committees).

Ø  Develop accessible communication tools tailored to the needs of particular groups to foster understanding and trust.

 

5. Right to Appeal
 

Issue: Given the significance of the decision to withhold or withdraw critical care resources from a patient, roundtable participants underscored the need for a timely appeal process as an important safeguard to uphold non-discrimination.

Potential actions:

Ø  Establish an external appeals process by a third party.

6. Development of Interim Protocol for Wave 2
 

Issue: Given the increasing hospitalizations in Wave 2, roundtable participants underscored the urgency of having a non-discriminatory, legally sanctioned, and effective triage protocol in place in the event that there is a major surge in demand for critical care in the coming weeks or months. Absent an interim protocol, roundtable participants acknowledged that clinicians would be left unsupported in the triage decision-making process and Indigenous, Black and other racialized patients and persons with disabilities would be placed at significant risk of harm. The interim protocol would be subject to further revisions and include ongoing engagement and co-development with key stakeholders.

Potential actions:

Ø  Develop an interim protocol in collaboration with human rights stakeholders and critical care providers. The interim protocol could be based on the institutional protocol created by the Ontario COVID-19 Critical Care Command Centre with modifications to reflect where there is broad human rights stakeholder agreement.

Ø  Concurrently, continue stakeholder engagement to address unresolved issues and to advance elements of the Proposed Framework which may require more time to implement.

APPENDIX 1: Roundtable Participants

Roundtable Facilitator:

Kwame McKenzie (CEO, Wellesley Institute)

Participants:

Nicole Blackman (Provincial Director, Indigenous Primary Health Care Council)

Avvy Go (Director, Chinese and Southeast Asian Legal Clinic)—also provided written submission

James Janeiro (Director, Community Engagement and Policy, Community Living Toronto)

Trudo Lemmens (Professor & Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto)

David Lepofsky (Chair, AODA Alliance)

Caroline Lidstone-Jones (CEO, Indigenous Primary Health Care Council)

Roxanne Mykitiuk (Professor, Osgoode Hall Law School, York University)

Tracy Odell (President, Citizens with Disabilities)

Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)

Jewelles Smith (Past-Chairperson, Council of Canadians with Disabilities)

Observers:

  1. Office of the Minister of Health

Emily Beduz (Director, Pandemic Response)

Heather Potter (Director, Issues and Legislative Affairs)

  1. Ministry of Health

Tina Sakr (Team Lead, Priority and Acute Programs)

Jennifer Lee Arseneau (Senior Policy Advisor, Priority and Acute Programs)

Louise Verity (Strategic Advisor to the CEO)

  1. Ontario COVID-19 Critical Care Command Centre

Andrew Baker (Incident Commander)

 

  1. Ontario Human Rights Commission

Ena Chadha (Chief Commissioner)

Violetta Igneski (Commissioner)

Raj Dhir (Executive Director and Chief Legal Counsel)

Shaheen Azmi (Director, Policy, Education, Monitoring & Outreach)

Bryony Halpin (Senior Policy Analyst)

Jeff Poirier (Senior Policy Analyst)

Rita Samson (Senior Policy Analyst)

  1. Ontario COVID-19 Bioethics Table (in attendance)

Jennifer Gibson (Co-Chair; University of Toronto)

Dianne Godkin (Co-Chair; Trillium Health Partners)

Sally Bean (Toronto Region Bioethics Lead and Member; Sunnybrook Health Sciences Centre)

Cecile Bensimon (Member; Canadian Medical Association)

Carrie Bernard (Member; William Osler Health System, University of Toronto, McMaster University)

Nicole Blackman (*new member as of Dec 2020; Indigenous Primary Health Care Council)

Paula Chidwick (Central Region Bioethics Lead and Member; William Osler Health System)

James Downar (Member; The Ottawa Hospital, Bruyere Continuing Care, Ottawa Health Research Institute)

Lisa Forman (Member; University of Toronto)

Mary Huska (North Region Bioethics Lead and Member; Health Sciences North)

Michael Kekewich (East Region Bioethics Lead and Member; The Ottawa Hospital)

Stephanie Nixon (Member; University of Toronto)

Nancy Ondrusek (Member; Public Health Ontario)

Lisa Schwartz (Member; McMaster University)

Robert Sibbald (Member; London Health Sciences; Western University)

Maxwell Smith (Past Co-Chair and Member; Western University)

Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students

Veromi Asiradam, JD Student, Osgoode Hall Law School, York University

Ya-En Cheng, JD Student, Osgoode Hall Law School, York University

viii) Recorder

Danielle Linnane (Quality Improvement Specialist, Ontario Health)

 

APPENDIX 2: Development of the Proposed Framework

 

The Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (the “Proposed Framework”) was developed based on iterative review of the academic literature and published policy statements on critical care triage in a pandemic, consultation with clinical, legal, and other experts, and feedback from health system stakeholders. The Proposed Framework with recommendations for next steps was submitted to the Ministry of Health and Ontario Health in September 2020.

 

Development of the Proposed Framework was undertaken in three phases from March to December 2020:

  • In Phase 1, an initial draft framework was developed in March 2020 in response to an urgent need for the Ontario health system to prepare for the possibility of a major surge in demand for critical care as was being observed in Italy, Spain, and New York State. The initial draft, which was developed without the benefit of consultation with human rights stakeholders, among others, was released to hospitals on March 28 to aid planning. A major surge in demand for critical care was averted in Ontario. This draft framework was not implemented and was formally rescinded on October 29, 2020.
  • In Phase 2, extensive feedback on the initial draft framework was received in April 2020 through written submissions from diverse organizations and groups. Feedback was sent either directly to the Bioethics Table or to the Ministry of Health or Ontario Health and shared with the Bioethics Table. The Bioethics Table reviewed and considered all feedback and amended the document accordingly. Additional feedback was solicited from bioethics, health law, and clinical experts. An updated draft framework was developed in May 2020 based on new published findings in the literature, policy discussions in the public domain (e.g., policy statements), and written stakeholder feedback.
  • In Phase 3, the Bioethics Table began meeting with the Ontario Human Rights Commission (OHRC) in May 2020 and undertook an expanded stakeholder consultation process to elicit input from Black and other racialized groups, Indigenous health leaders, older adults, and disability rights experts. A first stakeholder roundtable was co-convened with the OHRC on July 15, 2020. Meetings continued through July and August with disability rights stakeholders and with the Indigenous Bioethics Reference Group of the Indigenous Primary Health Care Council. The Proposed Framework was informed extensively by these stakeholder discussions, an updated review of the literature and policy statements from civil society organizations (e.g., Canadian Association of Retired People), and additional input from health law and clinical experts. In December 2020, the Bioethics Table received approval to convene a second stakeholder roundtable to review and elicit feedback on the Proposed Framework. The roundtable took place on December 17, 2020.

The Proposed Framework document is a green document within the overall COVID-19 pandemic response in Ontario. The process for developing an approach to critical care triage in the context of a major surge in demand must be sensitive and responsive to changing conditions, emerging evidence, and evolving understanding of the ethical, social, and legal implications of critical care triage for major surge in a pandemic. As such, this document should be subject to regular review and updating as appropriate.

Acknowledgments:

The Bioethics Table would like to acknowledge the substantive feedback, input, and advice of the following organizations through written submissions and/or stakeholder consultations (listed alphabetically):

  • AODA Alliance
  • ARCH Disability Law Centre
  • Black Health Committee, Alliance for Health Communities
  • Canadian Frailty Network
  • Canadian Geriatric Society
  • Canadian Medical Protective Association
  • Canadian Thoracic Society
  • Chinese and Southeast Asian Legal Clinic
  • Citizens with Disabilities Ontario
  • Clinical, Organization, and Research Ethics (CORE) Network and Provincial COVID-19 Bioethics Community of Practice – University of Toronto Joint Centre for Bioethics[1]
  • College of Nurses of Ontario
  • College of Physicians and Surgeons of Ontario
  • Community Living Toronto
  • Council of Canadians with Disabilities
  • COVID-19 Critical Care Command Centre and Provincial Critical Care Table, Ontario Health
  • Indigenous Bioethics Reference Group, Indigenous Primary Health Care Council
  • Muscular Dystrophy Canada
  • Ontario Hospital Association/HIROC
  • Ontario Human Rights Commission
  • Ontario Medical Association

The Bioethics Table has also benefited from the substantive feedback, input, and advice of individual scholars and practitioners with expertise in the following areas:

  • Clinical Medicine – over 20 clinician experts in cancer care, cardiac care, complex continuing care, critical care, emergency medicine, geriatric medicine, neurology, stroke, thoracic medicine
  • Health Equity
  • Health Law and Human Rights Law

**Please note that these acknowledgments do not signify endorsement of the Proposed Framework.**

 

APPENDIX 3: Roundtable Documents

The following is a list of recent publications, including government or policy documents, journal articles, and media reports, on the topic of critical care triage and associated frameworks/protocols in Canada and elsewhere. These were pre-circulated to roundtable participants for their information.

 

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

 

  1. Quebec Critical Care Triage Protocol (Nov 2020 – In French)
  2. Saskatchewan Health Authority Triage Working Group, Critical Care Resource Allocation Framework (Sept 2020)
  3. Joint Commission on Triage Decisions for Severely Ill Patients During the COVID-19 Pandemic (Israel, July 2020)
  4. COVID-19 rapid guideline: critical care in adults (UK-NHS, March 2020/updated Sept 2020)

 

Publicly Available Advocacy/Feedback related to Critical Care Triage

 

  1. ARCH Disability Law Centre
  2. AODA Alliance/ARCH Disability Law Centre
  3. Ontario Human Rights Commission
  4. Société québécoise de la déficience intellectuelle – English translation using Google Translate attached

 

Journal & Media Articles

 

  1. Nouvelles directives pour l’attribution des respirateurs artificiels (Le Devoir) – English translation using Google Translate attached
  2. Following controversy, Quebec revises rules for who gets intensive care treatment if resources are limited (CBC news)
  3. Frailty Triage: Is Rationing Intensive Medical Treatment on the Grounds of Frailty Ethical? (American Journal of Bioethics)
  4. Disability, Disablism, and COVID-19 Pandemic Triage (Journal of Bioethical Inquiry)
  5. What the Chaos in Hospitals Is Doing to Doctors: Politicians’ refusal to admit when hospitals are overwhelmed puts a terrible burden on health-care providers (The Atlantic)
  1. Using the Clinical Frailty Scale in Allocating Scarce Health Care Resources (Canadian Geriatrics Journal)
  2. Ontario has a world-leading protocol that all provinces and territories should adopt to be truly ready for COVID-19’s second wave (Policy Options)
  3. Proceed with caution with Ontario’s critical care triage protocol (Policy Options)

APPENDIX 4: OHRC Recommendations

Summary of OHRC Feedback on Triage Framework

December 18, 2020

 

Interim Framework / Protocol

  • The OHRC encourages the Ministry of Health to share the “protocolized” version of the Triage Framework that was sent to hospitals in Ontario and also make this document available to all stakeholders involved in the consultation.
  • Without having seen this document, the OHRC is not in a position to assess whether the protocolized version could be adapted or whether an entirely new document needs to be developed to reflect stakeholder input and serve as an interim protocol. An interim protocol should be short, user friendly and developed with a view to how it can be used in a crisis – until further consultation can happen.
  • The interim protocol could continue to evolve as a basis for further consultation on more complex and contentious issues. While not yet sanctioned by legislation or regulation, hospitals would have ready access to a protocol that is reasonably acceptable to stakeholders if a major surge happens.
  • An interim protocol could potentially address issues where there is agreement across stakeholder groups. The issues are, but not limited to:
    • Ensure the protocol recognizes that human rights is the primary guiding principle and law in accordance with the primacy clause under section 47 of Ontario’s Human Rights Code (Code)
    • Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge
    • Exclude the Clinical Frailty Scale (CFS) and any other clinical assessment factors and tools that are not validated for critical care resource allocation. The Bioethics Table recognizes the CFS was designed and validated to help identify treatment plans and accommodation supports for frail patients, and not for critical care triage. Used as a triage tool, the CFS would likely disproportionately impact Code-protected groups and may be inconsistent with human rights obligations including the duty to accommodate
    • Define short-term predicted mortality as the predicted risk of death in the initial weeks, and not twelve months after the onset of critical illness. The Bioethics Table recognizes that relatively little mortality occurs between six and twelve months
    • Ensure a fair and efficient appeal mechanism
    • Explicitly recognize the legal duty to accommodate including essential support persons / communications / interpreter access, etc.
    • Mandate a clear procedure to document decisions that requires evidence-based written reasons. This could include a “positive obligation” checklist to account for issues of equity and the social determinants of health
    • Require socio-demographic data collection to monitor for adverse application of the protocol
    • Allow for human rights equity groups to monitor, and provide feedback on the protocol.

The OHRC also agrees with the Bioethics Table’s recommendations that call on the Ministry of Health and Ontario Health to:

  • Issue clear communications that health care providers must disregard and destroy the March 28 version of the protocol
  • Circulate the proposed framework, including the clinical assessment factors and tools, for public feedback and independent legal review
  • Convene a multidisciplinary panel, including experts in human rights and law to further develop, or refute, the clinical factors and tools identified in the proposed framework
  • Engage health care partners to develop guidance for implementing the protocol including clinical operations, communications, training, patient and clinician supports, data collection and monitoring
  • Provide for governance and accountability mechanisms including responsibility for initiating the protocol, data collection and independent monitoring for adverse consequences
  • Sustain equitable COVID-19 prevention efforts to avoid the need to initiate the protocol, and mitigate disproportionate impacts on vulnerable groups
  • Meaningfully engage vulnerable groups, including Indigenous communities, Black and racialized communities, persons with disabilities, older persons and others for their perspectives and participation throughout the process to finalize and implement the protocol.
  • Provide comprehensive training on the new protocol, including anti-bias education.

[1] The CORE Network and the COVID-19 Bioethics Community of Practice comprise practicing bioethicists who work in a variety of health institutions, including hospitals, long term care homes, rehabilitation facilities, community care, and complex continuing care settings. Members have diverse disciplinary expertise (e.g., philosophy, law, anthropology) and clinical professions (e.g., medicine, nursing, social work, occupational therapy). CORE Network members are based in the Greater Toronto/Hamilton Area. The COVID-19 Bioethics Community of Practice draws practicing bioethicists from across the province of Ontario totalling >50 individuals. The University of Toronto Joint for Bioethics provides secretariat support for both the Core Network and the COVID-19 Bioethics Community of Practice.



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Click here to download in MS Word format “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals



Click here to download in MS Word format “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals



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New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge

February 26, 2021 Toronto: There are frightening and indefensible new problems with the Ford Government’s plans for how to decide who lives and who dies if the COVID-19 pandemic overloads Ontario hospitals, leading to rationing or “triage” of life-saving critical care. This is revealed in an exhaustive new report made public today. This thoroughly researched report reveals that:

  1. It is dangerous to relegate concern about Ontario’s critical care triage plans to the back burner, just because COVID infection rates are reducing and vaccines are gradually being distributed. There remains a real risk of another COVID-19 surge. A senior medical advisor to the Government advisor said on January 23, 2021 that such triage may already be taking place.
  1. A seriously flawed, disability-discriminatory and highly objectionable online calculator has been created for triage doctors to determine who will be refused life-saving critical care during triage or rationing of critical care. Such an online calculator’s computation, based on a doctor’s keying in data, should never decide that a patient should be refused life-saving critical care they need. This is especially so when that online calculator discriminates against some patients based on their disability.
  1. If hospitals start rationing or triaging critical care, there is a danger that some emergency medical technicians (EMTs) may improperly refuse to give a patient critical care they need and want before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  1. A transparently erroneous legal strategy has been devised for defending the legality of Ontario’s critical care triage plan. Triage doctors, hospitals and the Ontario Government are expected to argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they are following the January 13, 2021 Critical Care Triage Protocol (a protocol that is rife with serious problems that the AODA Alliance and other disability advocates have previously identified). They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This new report shows that that legal defence strategy is fatally flawed.
  1. A troubling January 23, 2021 webinar to train frontline critical care triage doctors wrongly minimizes the enormity of the role doctors would play, while they are making life-and-death decisions over which patients would get life-saving critical care, if critical care triage takes place. That webinar harmfully and wrongly tries to convince triage doctors not to worry about being sued, so long as they follow the January 13, 2021 Critical Care Triage Protocol. At the same time, that webinar did not alert frontline doctors to the serious disability discrimination and due process concerns that disability advocates have raised with the directions that those frontline doctors are being told to implement if critical care triage is to occur.

“We agree that Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a lawfully mandated triage protocol that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities, who have already disproportionately suffered the hardships of the COVID-19 pandemic,” said David Lepofsky, Chair of the non-partisan AODA Alliance, which campaigns for accessibility for 2.6 million Ontarians with disabilities. “This report confirms that the Ford Government has been hearing from health professionals and their insurance representatives, but the Government needs to end its embargo on directly talking to disability community voices about this important issue. We’ve written the Ford Government, calling on it to rescind the disability-discriminatory January 13, 2021 Critical Care Triage Protocol.”

Contact: AODA Alliance Chair David Lepofsky, [email protected]

For more background on this issue, check out:

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care, available at https://www.aodaalliance.org/whats-new/a-deeply-troubling-issue-of-life-and-death-an-independent-report-on-ontarios-seriously-flawed-plans-for-rationing-or-triage-of-critical-medical-care-if-covid-19-overwhelms-ontario-hospitals/ and the AODA Alliance’s February 25, 2021 letter to the Ford Government, sending it that report.
  2. The January 13, 2021 triage protocol.
  3. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  4. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.



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Read the AODA Alliance’s February 25, 2021 Letter to Ontario Minister of Health Christine Elliott – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities   Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

February 25, 2021

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

Re: Ontario’s Plan for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We write to alert you to yet more serious concerns about the Ontario plan for critical care triage in the event that Ontario hospitals get overloaded and start to ration or triage life-saving critical care. With this letter, we enclose a new report that the AODA Alliance has prepared which independently reviews those plans. It identifies several serious new problems with the Ontario critical care triage plan, beyond those which we have earlier alerted you to in our unanswered letters, those being our September 25, 2020 letter, our November 2, 2020 letter, our November 9, 2020 letter, our December 7, 2020 letter, our December 15, 2020 letter, our December 17, 2020 letter and our January 18, 2021 letter.

We urge the Ford Government to immediately act to eliminate from Ontario’s critical care triage plan the problems we have identified up to now, and in this new report. Minister, this is an issue of life-and-death for Ontario’s most vulnerable people. It deserves a response from you.

For example, this new report reveals that a seriously troubling and disability-discriminatory online “Short Term Mortality Risk Calculator” has been created for triage doctors to use to calculate whether a patient should be refused life-saving critical care they need and want, if critical care triage must take place. It is available at www.stmrcalculator.ca It should immediately be shut down.

This new report also reveals that instructions may have been given or may be given to Ontario emergency services and EMTs on the possibility of not starting critical care supports in some situations for an emergency patient who needs and wants them, before reaching the hospital, if critical care triage has been directed for Ontario. This would be done so that hospitals don’t feel obligated to continue giving that patient critical care. We ask you to let us know if any such instructions have been given or have been designed or contemplated, by whom and to whom, with and with what authority? If so, we ask you to give us a copy of those instructions, past or present, and any draft instructions being considered.

This new report also shows that the troubling legal defence strategy that has been crafted to defend Ontario’s critical care triage plan is fatally flawed. It shows as well that this plan goes even further to in effect make each critical care triage physician a law unto themselves, dressed up as precise and objective medical science. We ask you to rescind that plan, and to ensure that any critical care triage plan or protocol is free of constitutional and human rights violations.

There has been no public announcement that critical care triage is already occurring in Ontario. To the contrary, The Government has said that it has not been occurring. Yet this report reveals that such triage in some form may already in effect be taking place in Ontario, according to a January 23, 2021 statement by one of the senior physicians involved in Ontario’s critical care triage planning. We ask you to immediately look into this, make all the relevant information public, and take steps to ensure that critical care triage does not occur until and unless it is free of these serious problems.

Please end your Government’s protracted secrecy in the area of critical care triage. This report reveals that senior physicians whom The Government has entrusted in this area have emphasized the importance of openness and transparency. For example, please make public now and provide us with the Bioethics Table’s secret January 12, 2021 report on critical care triage to The Government.

Minister, please now meet with us. Have your Ministry officials, responsible in this area, meet with us. Do not simply slough us off on the Bioethics Table. It is not the body making the decisions here. Moreover, the Bioethics Table has unwisely rejected some key parts of our input without explanation, without justification and without passing along the advice on this topic that it evidently opted to reject or disregard.

Please stay safe.

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC:

Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]



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A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals


A Deeply Troubling Issue of Life and Death

An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals

February 25, 2021

 Part I Introduction

This is an independent report on Ontario’s plans for how to ration or “triage” critical medical care, if the COVID-19 pandemic overloads Ontario hospitals. If there are more patients who need critical care than there are critical care beds, equipment and medical staff to treat them, Ontario has a plan in place for deciding which patients will be refused the critical care they need. To refuse critical care to a patient needing it is akin to a death sentence.

This report reveals new and seriously troubling problems with Ontario’s critical care triage plans. The AODA Alliance believes that this report is the most thorough and up-to-date external examination of Ontario’s current critical care triage plans.

The AODA Alliance and other disability advocates, such as the ARCH Disability Law Centre, have previously unearthed, documented and revealed to the public several serious problems with Ontario’s critical care triage plans. In this report, the AODA Alliance reveals and documents even more previously undetected serious problems. These bear on patients with disabilities during the COVID-19 pandemic. That pandemic has already imposed disproportionate hardships on people with disabilities.

It would be dangerously wrong to think that concern about Ontario’s plans for critical care triage can be relegated to the back burner because COVID-19 infection rates are reducing and the COVID vaccine is arriving. This is because there is a real risk of another surge. The much-more contagious new COVID-19 variants are spreading. Rolling out COVID vaccinations are delayed. There is uncertainty whether those vaccines immunize people from these new variants. Future Government loosening of public lock-downs risks further spread of the virus.

At a January 23, 2021 critical care triage training webinar for doctors and hospitals (discussed further below), a key player in the Government’s critical care triage planning, made it clear that such triage is not some remote hypothetical. Dr. Andrew Baker, Incident Commander on the Ontario Government’s Critical Care COVID Command Centre, said:

“This (i.e. triage) may already be happening. I’ve heard from many people, including leaders from O.H. (note which may refer to Ontario Health), From Steini Brown (Which appears to be a reference to Adalsteinn (Steini) Brown, Dean of the Dalla Lana School of Public Health who has been advising the Ontario Government on health issues) presenting on CP24, and others, that the net effect of the system right now is that people, threatened at better than 20% 12-month survival, are not getting usual access to care, with a measurable negative impact on the morbidity and mortality. So we’re being told that this type of decision, these decisions about redirecting incremental resources, are already happening, with a real impact on people’s outcome.”

Over the past ten months, the AODA Alliance and other disability advocates and organizations with whom we are allied, have been trying to discover the critical care triage plans are for Ontario, trying to review these plans once unearthed for possible problems, trying to raise our serious concerns with the Ontario Government, and trying to bring these issues to the public’s attention through conventional and social media. This effort has been made far more difficult because the Government has maintained a pervasive cloak of secrecy over its critical care triage plans and has been substantially unwilling to talk to disability community representatives about its critical care triage plans.

This report’s new findings are summarized as follows:

  1. It would be dangerous to put concern about Ontario’s critical care triage plans on the back burner, just because COVID infection rates are reducing and the vaccine is rolling out. There is a real risk of another COVID-19 surge. As well, a senior Government advisor says triage may already be taking place.
  2. Ontario created a seriously flawed, disability-discriminatory and highly-objectionable online calculator to compute who will be refused needed life-saving critical care during triage or rationing of critical care.
  3. There is a danger that emergency medical technicians (EMTs) could improperly refuse to give a patient critical care they need and want, before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  4. This report reveals the transparently erroneous legal strategy devised for defending the legality of Ontario’s critical care triage plan. By this strategy, doctors, hospitals and the Ontario Government would argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they do so following the January 13, 2021 Critical Care Triage Protocol. They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This report identifies all the fatal flaws in that defence strategy.
  5. Merely proclaiming that human rights should be respected during critical care triage, and that there is no intent to discriminate, provides no defence to the disability-discriminatory January 13, 2021 Critical Care Triage Protocol
  6. This report reveals an even greater risk under Ontario’s critical care triage plan that each triage doctor can unintentionally become a law unto themselves than the AODA Alliance had previously discovered.
  7. Ontario’s critical care triage plan risks unfairly and arbitrarily providing different amounts of oversight of triage decisions from hospital to hospital.
  8. The training recently provided for frontline critical care triage doctors wrongly minimizes the enormity of their triage decisions and the importance of being legally accountable for them.
  9. A substantially incorrect idea of “equity” was presented to frontline doctors being trained to make critical care triage decisions.
  10. Some of those central to the planning for critical care triage in Ontario call for openness and transparency –something that this report shows to be missing.
  11. The Health Ministry still refuses to talk to the disability community about critical care triage plans, but is clearly talking to the health sector and their insurance companies.
  12. Doctors, hospitals and emergency medical services, should beware the protocol, directions and training they have been given on Critical Care Triage. They would use them in action that endangers patients life at their peril.

An important starting point for this report is that it may become necessary for Ontario to have rationing or triage of critical care services. The AODA Alliance does not dispute this, and has never disputed this. The AODA Alliance continues to argue that more can be done to avert it becoming necessary.

However, if it were to become necessary, Ontario must have a plan and protocol in place to govern it. The AODA Alliance has never disputed the need for such a plan and protocol. To the contrary, it is essential that Ontario be well-prepared for this possible nightmarish development.

If critical care triage is to occur, it must not be left to each triage doctor to decide based on their own beliefs or preferences which patients should be refused critical care, and on what basis. Our core message is that any critical care triage plan and protocol must be legal. They must fully comply with the human and constitutional rights of patients.

One cannot simply dismiss all concerns about unlawful discrimination in critical care triage plans or protocols on the grounds that any such triage “discriminates”, because some patients will be denied life-saving critical care they need. All laws give something to some people, but not others. What the Charter of Rights and the Ontario Human Rights code forbid is discrimination on certain illegal bases, such as one’s disability.

Here is how this report proceeds. Part II of this report gives a detailed background to the events leading to the creation of Ontario’s current critical care triage plans. It identifies the key organizations connected with the Ontario Government that are involved with creating this plan. It summarizes the serious problems with Ontario’s critical care triage plans from a disability perspective, that the AODA Alliance and others have previously revealed.

Readers who already know that background should skip right to Part III. It is the report’s meat and potatoes. Part III describes and documents each of the additional serious problems with Ontario’s critical care triage plan that the AODA Alliance here reveals. These are principally revealed from an analysis of the January 13, 2021 Critical Care Triage Protocol that has been sent to all Ontario hospitals, and the January 23, 2021 webinar on that protocol which teaches frontline doctors and hospitals how, when and why to implement that protocol, if Ontario hospitals are directed to ration or triage critical care services due to the COVID-19 pandemic. That webinar is the fullest peak behind closed doors to see what is in store under Ontario’s critical care triage plan.

The AODA Alliance puts the Ontario Government, and those designing and planning to implement Ontario critical care triage plans, on notice about these serious new concerns. We call on them to immediately talk to us and other disability advocates about these concerns, and to immediately rectify all these serious problems.

The AODA Alliance is a non-partisan grassroots disability coalition. It advocates for accessibility for 2.6 million Ontarians with disabilities, including in the health care system. It has been focusing for the past eleven months on the disproportionate impact of COVID-19 on people with disabilities and advocating for measures to protect their urgent needs during the pandemic. Its efforts on this issue are documented on the AODA Alliance website’s health care page.

 Part II Background to This Report and to Ontario’s Critical Care Triage Plans — for Newcomers to This Issue.

 1. Key Timelines, Organizations, Documents and Sources

In February 2020, Ontario’s Health Ministry secretly decided that Ontario needs to develop a critical care triage protocol, in case one is needed because of the impending COVID-19 pandemic. The Government secretly appointed an external advisory group of physicians and bioethicists to design it. That is the Government’s “Bioethics Table”.

In February and March 2020, the Bioethics Table secretly prepared an original triage protocol, the March 28, 2020 critical care triage protocol. It was not made public. Ontario Health, part of the Ontario Government, secretly sent it to all hospitals in the early 2020 spring.

Word of that protocol quickly leaked to the disability community. On April 8, 2020, over 200 disability organizations sent the Ontario Government and made public an open letter, that decried the March 28, 2020 protocol as disability discriminatory.

In an effort to swiftly offer constructive ideas, the AODA Alliance prepared and made public its April 14, 2020 Critical Care Triage Discussion paper. That Discussion Paper identified key ingredients that a critical care triage protocol should include.

On April 21, 2020, the Ontario Government publicly claimed that the March 28, 2020 critical care triage was only a “draft” even though it was not marked “draft”. It undertook that the Ontario Human Rights Commission and community advocates would be consulted on Ontario’s critical care triage plans.

During the 2020 summer, under the leadership and initial coordination of the Ontario Human Rights Commission the Bioethics Table held several virtual meetings with the AODA Alliance, the ARCH Disability Law Centre and a group of other disability advocates and experts. These disability advocates described serious human rights concerns with Ontario’s plans for critical care triage from the disability perspective. The Bioethics Table shared a revised draft critical care triage protocol. The AODA Alliance made it public on its website on July 16, 2020.

On September 11, 2020, the Bioethics Table submitted a report to the Ontario Government, recommending a framework for conducting critical care triage. The Government did not make this secret September 11, 2020 report public until December 10, 2020, and even then, only after repeated pressure. The Bioethics Table, the Ontario Human Rights Commission, the AODA Alliance and many others had called for the Government to immediately release the Bioethics Table’s September 11, 2020 report.

The Government continued to conceal other documents created in connection with that report, despite our requests to see them all. The Government had shared the Bioethics Table’s September 11, 2020 report and related secret documents with health care providers over the 2020 fall, at the same time as it was steadfastly refusing to show it to the public or to the disability community.

On October 29, 2020, the Ontario Government quietly rescinded the March 28, 2020 critical care triage protocol. Disability community advocates, supported by the Ontario Human Rights Commission, had been calling for months for it to be rescinded. The fact of its rescission was not made public until the Government was pressed on this topic in the Legislature’s Question Period on November 5, 2020.

On December 17, 2020, the Government-appointed Bioethics Table held a rushed virtual roundtable discussion on its just-released September 11, 2020 report on critical care triage. This included the AODA Alliance, some other disability community representatives and some representatives from racialized and Indigenous communities. Those community representatives united in stating that this rushed meeting did not give them enough time to read and fully analyze the September 11, 2020 Bioethics Table report, that their review to date revealed that it has serious human rights problems, and that they all wanted a further chance to give direct input on critical care triage plans. No such further opportunity for input has been provided.

At that roundtable, Dr. Andrew Baker, incident commander with the Ontario Critical Care COVID Command Centre, said a new approach to triage, embodying the concerns raised at the roundtable (with which he seemed to find real merit), would in effect have to wait for a future time. That would have to be after this pandemic is over.

On January 12, 2021, the Bioethics Table rendered a new report to the Ontario Government. This report is secret. The AODA Alliance has never seen it.

On January 13, 2021, a new critical care triage protocol was sent to Ontario hospitals. The Government did not make it public. It quickly made its way to the AODA Alliance and others.

The AODA Alliance made the January 13, 2021 Critical Care Triage Protocol public on the AODA Alliance website on January 18, 2021.

The January 13, 2021 Critical Care Triage Protocol states that it was approved by the Ontario Critical Care COVID Command Centre. The Ontario Government has declined to answer an AODA Alliance inquiry about the membership and mandate of the Ontario Critical Care COVID Command Centre. It is an internal Government-mandated body that evidently has been given provincial authority to decide what the critical care triage protocol should be, and when critical care triage should take place in Ontario. It has operated in secret, not in public.

On January 23, 2021, Critical Care Services Ontario held an online webinar to train frontline doctors and hospitals on why, when and how to conduct critical care triage under the January 13, 2021 Critical Care Triage Protocol. Critical Care Services Ontario is mandated to coordinate critical care services in Ontario, according to its website.

The AODA Alliance happened to learn about this webinar, and that it is posted on Youtube at https://www.youtube.com/watch?v=xatBYgXZHt4. That webinar’s contents are an important source for this report’s findings. Presenters at that webinar included key players in the design, oversight and defence of Ontario’s critical care triage plan.

The AODA Alliance has written the Ontario Health Minister Christine Elliott seven times over five months, detailing serious concerns with the Government ‘s critical care triage and asking important questions. None of these letters have been answered, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter and its January 18, 2021 letter to Health Minister Christine Elliott.

A comprehensive “paper trail” of disability advocacy efforts on this issue from the perspective of patients with disabilities is available on the AODA Alliance website’s health care page. Some key documents, such as the January 13, 2021 Critical Care Triage Protocol, the Bioethics Table’s spring-summer draft of that protocol, and the Bioethics Table’s September 11, 2020 critical care triage report to the Ontario Government were all publicly posted for the first time on the AODA Alliance web page. It appears that the public needs to visit such public interest websites as the AODA Alliance website and the ARCH Disability Law Centre website, rather than the Ontario Government’s website, to find out what is going on in this important area of provincial public health policy, for which the Ontario Government is responsible.

 2. Previously-Revealed Fundamental Problems with the Ontario Government Plans for Critical Care Triage

This report identifies new and additional problems, previously unrevealed, with the Ford Government’s plans for critical care triage in Ontario, if hospitals cannot cope with a surge in the number of patients needing life-saving critical care. These new concerns supplement and build upon the important and disturbing problems with the Government’s critical care triage that the AODA Alliance and other disability advocates have revealed and publicized over the last ten months. Those earlier concerns are summarized as follows:

  1. The Government has not shown that there is valid legal authority to issue a direction to hospitals and physicians on critical care triage. A memo to hospitals cannot direct who lives and who dies. This is an important part of the rule of law in a democracy. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol directs disability discrimination against some patients with disabilities who need critical care. It directs the use of the “Clinical Frailty Scale” as a tool for assessing some patients’ eligibility to be refused critical care. That Scale has doctors assess whether patients over age 65 with a progressive disease and needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol does not provide due process to patients needing critical care and who are at risk of being denied that care due to critical care triage. They have no right of input into the decision, and no avenue for a swift appeal if doctors decide to refuse them the life-saving critical care that they need to survive. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The January 13, 2021 Critical Care Triage Protocol would in effect make each triage doctor a law unto themselves, with sweeping subjective discretion over who should live and who should die, dressed up in the garb of impressive medical jargon. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The Ontario Government’s senior medical advisors on critical care are urging the Ontario Cabinet to pass an executive order that would suspend the Health Care Consent Act. They want this so doctors could unilaterally withdraw critical care from a patient already receiving it, without that patient’s consent, in order to give that critical care to another patient. The AODA Alliance and other disability advocates have strenuously objected to any such suspension of the Health Care Consent Act. The AODA Alliance has warned that for the Government to try to do so, including if it tried to do so by an order of the Ontario Cabinet, would be tap dancing in a constitutional minefield. See e.g. the February 1, 2021 AODA Alliance Update.

 Part III Cataloguing Serious New Problems with Ontario’s Critical Care Triage Plan

  1. Ontario Has Created a Seriously Flawed Online Calculator to Compute Who Will Be Refused Needed Life-Saving Critical Care During Triage

We were deeply troubled to discover from the January 23, 2021 webinar that Ontario has created an online “Short Term Mortality Risk Calculator.” It is supposed to calculate whether a patient will be refused needed life-saving critical care, if critical care triage is directed. It is at the website www.STMRCalculator.ca.

A triage physician can input information about a patient who needs critical care into this short term mortality risk calculator. The calculator then coldly spits out a number that gives the patient’s triage priority score. That number will determine whether a patient is eligible for critical care they need, or whether they will be refused critical care, depending on the level of critical care triage that has been directed. During the January 23, 2021 webinar, Dr. James Downar, reportedly the author of the January 13, 2021 Critical Care Triage Protocol and a member of the Bioethics Table, stated:

“We’ve actually also got a calculator now that’s online that helps calculate these and gives the sort of –you can punch in some clinical information. It will give you the answer.”

The Government and its Ontario Critical Care COVID Command Centre and other related health bodies have never announced to the public the existence of this online calculator, to our knowledge. We have seen no indication that it has been successfully field-tested and/or peer-reviewed.

This short term mortality risk calculator is seriously objectionable. First, it wrongly and disrespectfully reduces a life-and-death decision about a seriously ill human being to a cold, digitized computation.

It risks giving triage doctors a false sense that it is the calculator that decides who lives and who dies. That wrongly diminishes a triage doctor’s needed alertness to their responsibility for their action. It is vital for triage doctors to own the triage decisions they make and feel fully responsible and accountable for them. This report later shows further concerns in that regard.

Second, this calculator creates the dangerous false impression that such a life-and-death assessment can in fact accurately and safely become an objective mathematical calculation. Medical science is far from that precise, when it comes to predicting whether a critically ill patient will die within the next year. On the January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, head of the Michael Garron Hospital’s Intensive Care Unit, stated in part:

“What’s different now is we have to essentially guesstimate what would happen a year from now.”

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…” Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurately in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

“…so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise.”

Further supporting the serious concern that that this is not a precise mathematical calculation, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, conceded during the January 23, 2021 webinar that triage physicians will be “estimating” a triage patient’s likelihood of surviving for a year after receiving critical care. Dr. Downar said:

“Ultimately this boils down to an individualized assessment for each person. This is not a checklist that applies to everybody, but simply an approach to estimating short term mortality risk, and using tools as appropriate to do that. The clinical criteria the prioritization criteria are based on published data where possible, and in some cases, based on expert opinion, based on the peer review that Andrea referenced.”

Dr. Downar also earlier said during that webinar:

“The focus of this is on the mortality risk at twelve months, not the estimated survival duration for an individual, right? So we know that it can be challenging to predict survival for individuals, but when we are looking at populations based on published data, we can I think be reasonably more sure about risks and certainly within the ranges, the broad ranges that we are talking about here.”

Third, this online calculator uses criteria that are transparently disability discriminatory, contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Under the heading “Frailty”, for patients over 65 with a terminal illness and expected mortality of more than six months, the calculator uses the disability-discriminatory Clinical Frailty Scale, described earlier in this report. As noted earlier, that Scale inquires about the number of activities of daily living that a patient can do without assistance, including dressing, bathing, eating, walking, getting in/out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, and handling their own finances. The calculator increases the patient’s frailty rating accordingly.

The AODA Alliance and the ARCH Disability Law Centre have amply shown the Government and the Government’s external advisory Bioethics Table that the Clinical Frailty Scale is replete with unjustifiable disability discrimination. See e.g. the AODA Alliance‘s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table. Neither the Bioethics Table nor the Ministry of Health, nor Ontario Health nor the Ontario Critical Care COVID Command Centre have presented any convincing arguments to disprove that the Clinical Frailty Scale is disability discriminatory, contrary to the Ontario Human Rights Code and the Charter of Rights.

That alone would be fatal to this online calculator. However, making this worse, the AODA Alliance has discovered that the online calculator also uses other disability discriminatory criteria. We have not had a full opportunity to investigate the entire calculator from this perspective. However, as an example, for “Cancer”, the calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

  • Whether a patient is “Fully active and able to carry on all pre-disease performance without restriction”
  • Whether a patient is “Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, e.g., light housework, office work” –
  • Whether a patient is “Ambulatory and capable of all selfcare but unable to carry out any work activities; up and about more than 50% of waking hours” –
  • Whether a patient is “Capable of only limited selfcare; confided to bed or chair more than 50% of waking hours” –
  • Whether a patient is “Completely disabled and cannot carry out any self-care; totally confined to bed or chair” – persons in this category receive the worst rating, for getting access to critical care.

The online Calculator does not alert doctors to these as serious human rights concerns. A physician using this online calculator could commit flagrant disability discrimination, without being alerted to this, and thinking it is totally appropriate conduct.

The foregoing examples of disability discrimination contradict the clear statement of the Government’s Bioethics Table in its September 11, 2020 report to the Ford Government as follows:

“To emphasize: the existence of disability must not be used as a criterion on which to deny critical care.”

That important sentence is strikingly missing from the later January 13, 2021 Critical Care Triage Protocol. It is not known whether the Bioethics Table later retreated from that important sentence in its later secret January 12, 2021 report to the Government, which the AODA Alliance and the public have not seen.

Fourth, the Bioethics Table and the Ontario Government including its Ontario Critical Care COVID Command Centre, never consulted the AODA Alliance or, to our knowledge, other disability advocates and experts, on this online calculator. The AODA Alliance has no knowledge whether the Government or its Bioethics Table or its Critical Care COVID Command Centre ever consulted the Ontario Human Rights Commission on this online calculator.

 2. There is a Danger that Emergency Medical Technicians (EMTs ) Could Wrongly Refuse to Give a Patient Needed Critical Care Before the Patient Even Gets to the Hospital – Improper Backdoor Trickle-Down Triage

Normally, emergency medical technicians (EMTs) may start critical care supports for a patient en route to hospital, if the patient needs it. The public expects that if an ambulance arrives in an emergency to help a person, the EMTs will do all they can to help save the patient’s life. The public does not expect that an EMT would unilaterally refuse to provide a life-saving measure that the patient needs, out of some thought that a triage doctor at the hospital might later feel trapped by the law that does not allow them to withdraw that critical medical care without the patient’s consent.

Yet to our total surprise and deep worry, almost one year into the COVID-19 pandemic, the AODA Alliance learned from watching the January 23, 2021 webinar that if critical care triage is directed for Ontario, instructions may have been given by someone (we don’t know who) to frontline EMTs or may in future be given to them, to the effect that EMTS should not administer some critical care to some patients who need it. Yet such back-door or trickle-down critical care triage should not take place., Certainly EMTs should not be directed to engage in such denial of critical care where needed, absent the patient’s consent to its being denied.

Speakers at the January 23, 2021 webinar, who are involved in planning Ontario’s regime for critical care triage, raised a concern that if EMTs start to apply critical care to a patient before they reach the hospital, then the hospital would not be able to withdraw that critical care afterwards unless the patient consented to its withdrawal. This is because of the Health Care Consent Act.

During the webinar, questions were asked about using the January 13, 2021 triage protocol where a patient earlier had critical care started “in the field” (i.e. before they get to hospital). And where that patient is then brought to the hospital’s emergency room, already receiving critical care. The concern was expressed that under the January 13, 2021 triage protocol, a doctor cannot withdraw critical care from a patient who is already receiving it, unless that patient consents to its withdrawal. In response, Dr. James Downar (a central figure in the design and public defence of Ontario’s critical care triage plan) said:

“Add this to the long list of very good reasons why we should have an executive order to allow withdrawal, for allowing for equity. Because we need to, I think, decrease the consequences of people, you know, mistakenly intubating somebody who should not have been prioritized. You want to make it very easy for people to offer critical care, and not make the mistake of not offering it and only finding out later, because they made a hurried decision, that they should have. That’s what you don’t want.

The ability to withdraw is the ability to offer in marginal or higher mortality risk cases. That’s the way to look at it, right? That’s why it would result in better outcomes for everybody.

I know that the ambulance services emergency services are aware of this document. (Evidently referring to the January 13, 2021 triage protocol) We had conversations with them early in the spring. And they have a sort of surge practices already available where they are going to look at situations where, you know, certain types of resuscitation, they would not initiate resuscitation in certain scenarios. And they are aware of this document, and, to the best of my knowledge, they certainly did in springtime align their practices – Their standards would change in a way that would reflect this document.

So, for example, if we had a maximum surge, that they would not attempt certain types of resuscitation, you know, cardiopulmonary resuscitation, and lower levels of surge, they would resuscitate people only in situations like having, you know, witnessed arrest and shockable rhythm, for example.

To your point, they should be aligned, and they are, emergency services are aware.”

Dr. Downar was asked if that information would be available. He responded:

“I can’t speak for the emergency services but I can speak to them.”

If there have been any such critical care triage secret directions to EMTs or to emergency services, or if any are being designed or contemplated, we and the public do not know what these directions are, or who is designing, approving them or issuing them. We and the public do not know who would make the potential life-and-death decision to refuse a roadside patient the critical care that they need, or whether there would be any notification to the patient or their family that this backdoor or trickle-down triage is even taking place. If, as Dr. Downar suggested, such directions to EMTs are aligned with the critical care triage protocol that has been sent to hospitals for use by physicians, they would then be replete with the same disability discrimination and due process problems that the AODA Alliance and others have revealed in Ontario’s past and present critical care triage protocols.

We have seen no prior Government policy, public statement, discussion or consultation on this. The Bioethics Table never raised it with us in any of its several virtual meetings with disability advocates and experts last summer. The Bioethics Table had ample opportunity to raise this. To the contrary, all previous discussions have been premised on the idea that critical care triage decisions would be made by doctors and would be made for patients who are already in hospital. The Bioethics Table’s September 11, 2020 report to the Ford Government includes the following statement, which does not state that EMTs might take any part in deciding whether to withhold needed critical care from a patient, on the grounds that the hospital might later want not to have to continue delivering critical care to that patient:

“”Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).

”      If critical care triage is initiated, this should not preclude the transfer of residents from long-term care facilities or other settings to acute care hospitals for acute care, even if their predicted short-term mortality risk would preclude them from receiving critical care.

”      Clinicians should not use prognostic tools for assessing predicted short-term mortality risk if they are not sufficiently trained and skilled with those tools.”

Here again, we do not know if the Bioethics Table withdrew that advice in its subsequent secret January 12, 2021 report to the Ontario Government. For its part, the AODA Alliance foresaw the risk of this backdoor or trickle-down triage and alerted the Government about it back on April 14, 2020. We then warned about the risk that EMTs might decline to treat a patient with a disability out of some thought that they would later be refused critical care at the hospital during a period of critical care triage.

However, it was then unimaginable to us that such misconduct could take place as a calculated direction to all emergency services. The fear was that an EMT might take such backdoor or trickle-down triage decisions upon themselves. The AODA Alliance’s April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities included this:

“8. An ambulance is called to an apartment where a patient with disabilities has contracted COVID-19 and has severe symptoms needing hospitalization. The EMTs are reluctant to take the patient to the hospital. They figure that due to rationing or triage protocols and to that patient’s disabilities, the emergency room doctors would not likely give that patient a ventilator, due to shortage of ventilators.

The EMTs should never use the patient’s disability or their predictions about whether that might lead a doctor to refuse to treat them as a reason or factor to refuse to bring them to the hospital if they otherwise have symptoms warranting a trip to the hospital.”

Even if it were assumed that critical care triage directions should be issued to EMTs and ambulance services (which the AODA Alliance vigourously disputes), the disability community and the broader public should be properly consulted on this well in advance. The Ontario Government and any body involved with this issue should immediately make public any directions or draft directions to any ambulance services or EMTs on possible triage of critical care in advance of arriving at hospital, so the public can know what is now going on. The Government should now reveal who is formulating these instructions, who is approving them, who is issuing them, and what legal authority, if any, they have to do this.

The Government should immediately rescind any instructions that would allow EMTs or emergency services to refuse to provide critical care to a patient who needs it, and who has not agreed to it being withheld. The AODA Alliance reiterates in this context all the concerns regarding critical care triage that disability advocates and experts have been raising with the Government since last April. Supplementing these, there is a serious concern that EMTs have neither the training nor the authority to ration or triage needed critical care.

 3. The AODA Alliance Reveals the Transparently Erroneous Legal Strategy for Defending the Legality of Ontario’s Critical Care Triage Plans

 a) Unmasking the Legal Defence Strategy

The AODA Alliance has unearthed the fatally flawed legal defence strategy that the Government, its Critical Care COVID-19 Command Centre and the like have evidently crafted to fend off anticipated legal challenges to their plans for deciding which patients will be refused life-saving critical care if the COVID-19 pandemic overloads hospitals, and requires critical care triage. Critical Care Services Ontario, the Ontario Critical Care COVID Command Centre, the Bioethics Table, those leading the development and/or implementation of Ontario’s critical care triage plan, the Ontario Government, and those insurance companies and lawyers who would defend doctors and hospitals if sued, have a clear legal defence strategy. They plan to argue that they cannot be successfully sued if a patient dies from a refusal of critical care that they need, so long as the doctors and hospitals followed the January 13, 2021 Critical Care Triage Protocol

This legal defence strategy heavily relies on the January 13, 2021 Critical Care Triage Protocol ‘s title: “”Ontario Adult Critical Care Emergency Standard of Care.” If a patient dies and their family sues for negligence because they were the victims of a refusal of critical care they need during critical care triage, the hospital, its doctors and the Government would plan to argue that they cannot be successfully sued for the patient’s resulting death, because this document sets the “standard of care.” Courts should use this “standard of care “ to assess the medical professionals’ conduct.

They plan to argue that the standard of care is determined by doctors who are experts in the field, and not by lawyers or others. They would argue that the January 13, 2021 triage protocol is the result of expert medical advice and decisions by the Bioethics Table and the Ontario Critical Care COVID Command Centre that approved it. As long as doctors and hospitals stick to the January 13, 2021 triage protocol, they plan to argue that they have fulfilled their professional obligations, and are therefore immunized from being sued or the subject of complaint to the Ontario College of Physicians and Surgeons (CPSO), the body that licenses and regulates physicians.

The Government, the triage doctors and hospitals would plan to argue that the “standard of care that applies is one that is mainly based on the reasonable and accepted practice expected of a similarly trained doctor in similar circumstances. They would argue that a court relies on medical expert witnesses to identify that standard of care.

From the January 23, 2021 webinar, they clearly intend to argue that the January 13, 2021 Critical Care Triage Protocol is just such a standard of care. They would argue that it was created by medical experts for medical experts after a long period of research, investigation and consultation.

This legal defence strategy also serves the Ontario Government’s current political strategy. The Ontario Government is publicly running as far as it can from this issue. In contrast, the Quebec Government has publicly owned this issue by publicly posting a government decree that sets out the terms of critical care triage. By so recognizing, the AODA Alliance is not in any way endorsing Quebec’s Critical Care triage plan.

The Ford Government has repeatedly dodged media questions where it can on critical care triage plans. As noted earlier, the Government has refused to answer the AODA Alliance ‘s seven letters on critical care triage. The Government has not publicly discussed or debated this critical care triage issue in the Legislature, unless the Opposition asks the Government about it in Question Period.

Instead, the Government has in effect hidden behind its advisory Bioethics Table. The Government has repeatedly said that the Ministry of Health has not approved the January 13, 2021 triage protocol. To distance itself from the protocol, it claimed that that protocol instead is experts advising experts.

For example, a February 7, 2021 Globe and Mail news report stated:

“In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.””

By that strategy, the Government appears to be trying to duck any responsibility for any decisions made that terminate a patient’s life because they are refused critical care during critical care triage. The Government would claim that it is the Ontario Critical Care COVID Command Centre, and not the Government, that decided whether, where and how critical care triage will occur. It would claim that the Ontario Critical Care COVID Command Centre is a table of medical experts, getting advice from the advisory Bioethics Table, also a table of experts. The Government can be expected to claim that it does not have to enact a triage protocol or under law, or indeed, to do anything, but let the medical profession just do its work.

This legal strategy was discovered by studying the January 23, 2021 CCSO webinar, and the Government’s few public statements on the triage protocol. During the January 23, 2021 webinar, lawyer Daphne Jarvis, who represents hospitals defending medical malpractice cases, said:

“…and as you’ve heard, it means that the focus shifts from optimizing individual care to maximizing population health outcomes. So, that concept may be new to us, and I can’t say that we have a body of Canadian case law specifically addressing pandemic critical triage situation. But there is a body of case law and medical legal literature that is broadly speaking relevant and that supports this concept.”

She also said:

“So, as you’ve heard, the document it’s more than one document, the document which outlines the emergency standard of care represents a very broad professional and expert consensus that has been developed over a long period of time with a huge amount of work, and it’s the emergency standard of care that assumes no change in the law.”

Ms. Jarvis went on to advise:

“So in short, it’s the best way to mitigate legal risk and to focus in a good faith effort to reduce morbidity and mortality.”

We add that the term “mitigate legal risk” that Ms. Jarvis used in the preceding quotation means “avoid someone successfully suing you.”

Similarly, speaking for the Canadian Medical Protective Association which defends and insures doctors who are sued for medical malpractice, Dr. Steven Bellemare explained:

“So why is the standard of care important? That’s because the standard of care is at the heart of any medical legal matter, be it a lawsuit or College complaint or hospital complaint. If you were to face a lawsuit with regards to a choice to not provide critical care services to a patient or for instance, the court would then seek to answer the question: ‘What would a reasonable physician, of similar training and experience, have done in a similar circumstance?’ That’s ‘s how it will determine whether or not there was negligence at play. And so the question then becomes what would other docs like in Critical Care have done in Ontario at that time, not in British Columbia, not in Quebec because every province is going to have a different approach to that.

So the standard of care usually is derived from expert opinion. We have experts, who are physicians of similar training and experience in similar circumstances as you would be, who provide opinions to the court as to what they would have done in that circumstance.”

Dr. Bellemare further explained:

“So the peer experts set the standard of care and the standard of care changes over time…. There are other ways that we can get to the standard of care, and that includes looking at guidelines or protocols that are published by various regulatory bodies like the CPSO in this case, or by national specialty societies. Finally, very rarely, governments can impose a standard of care. So that’ll be the case in Quebec, for instance, where their emergency triage protocol, if it goes into effect, will be done by decree of the Minister of Health, who will say from now on, this is how we are going to decide who gets access to care.

That’s not the case in Ontario. This is why we are talking about here the emergency standard of care and that’s not chosen by luck. Because this standard of care was created by your peers. It was created with input from critical care specialists. And as such, if and when the COVID-19 Command Centre decides to decree that it will go into place, it will be de facto the way your colleagues will expect you to behave in a time of crisis. And so it will be the way to practice. It will be the standard of care and what your peers will accept.”

 b) The Legal Defence Strategy is Fatally Flawed

Several reasons show why that legal defence strategy is fatally flawed. First, that legal strategy repeatedly and erroneously uses the label “standard of care” in order to try to position the January 13, 2021 Critical Care Triage Protocol as a big shield for doctors, hospitals, and, potentially the Government itself. Yet the January 13, 2021 Critical Care Triage Protocol is in truth not a doctors’ “Standard of Care.” The fact that it uses that title, and that the January 23, 2021 webinar presenters repeatedly use that term, does not make it a true standard of care.

In the law of negligence, the concept of a “standard of care” exists for a court to use to measure whether a physician was negligent:

  1. When the doctor diagnoses a patient and decides whether that patient needs medical treatment. The doctor must not be negligent when deciding what the patient’s condition is;
  1. When the doctor decides what treatment to prescribe for the patient. The doctor must not be negligent in choosing the proper treatment to prescribe for the patient, and
  1. When the doctor is delivering a treatment to the patient that they have prescribed. The doctor must not be negligent when treating the patient e.g. when performing surgery.

The Government, doctors and hospitals rely on this “standard of care “ label and this defence strategy at their serious peril. It would be unwise for them to be lulled into a complacent sense that they have nothing to worry about, so long as they follow the January 13, 2021 Critical Care Triage Protocol and repeatedly call it a “standard of care.”

We contend that the concept of “standard of care “ does not apply to a doctor who is deliberately deciding not to give a patient critical care who is known as needing that care. That is instead a triage or rationing decision about allocating scarce public resources, denying that patient services which are covered and assured by provincial health insurance and the Canada Health Act.

This is not a situation where a doctor decides that the patient is not so sick that they need critical care. It is not a situation where the patient does not want to receive critical care. Rather, it is a given in these triage cases that the patient needs it and wants critical care.

If a patient needs critical care, a doctor’s triage decision to refuse them that care (over the patient’s objection) is not done to assess what that patient medically needs, or to deliver to the patient the treatment they medically need. Rather, it is a decision to deliberately allocate scarce resources to another patient instead.

We understand the vexing exigencies that this triage protocol tries to address. However, dressing that protocol up as a “standard of care” is incorrect, inappropriate and misleading. It is designed to secure for doctors, hospitals and possibly the Government the undeserved windfall of the maximum legal protection or immunity from lawsuits.

Second, this legal defence strategy violates the rule of law and basic democratic principles. It in effect turns the medical profession into a state within a state. Under it, democratically elected, politically accountable politicians would not make the rules on who will get a scarce government-funded resource, namely critical medical care, during triage. Instead, unelected physicians and bioethicists would decide whether there will be critical care triage, and if so, who will be refused critical care., They would decide this, behind closed doors, talking to whomever they wish, excluding whomever they wish, accountable to no one, bringing to bear no training or expertise in human rights or constitutional rights.

This wrongly pre-decides that doctors alone should make life-and-death decisions about allocating scarce publicly-funded resources, with no public accountability. Yet it is not for doctors to assign themselves this role, set the rules for their decisions, and to decide how much or how little public accountability they will have for deciding who shall be refused needed life-saving critical care. In a democracy’s publicly funded health care system, decisions on health care rationing criteria, roles and rules are ultimately the Government’s responsibility.

Ontario’s experience illustrates the dangers with this. The Government’s Ontario Critical Care COVID Command Centre secretly approved the January 13, 2021 Critical Care Triage Protocol. By this “standard of care” legal defence strategy, the Government in effect delegates the decision-making authority on this life-and-death issue to that unaccountable, secret body, without the Legislature ever granting it that authority. This is not the open and transparent approach to the COVID-19 pandemic that Premier Ford promised.

We have never been given a chance to meet with the Ontario Critical Care COVID Command Centre. On December 7, 2020, we wrote Ontario Health Minister Christine Elliott, asking who is on that body, and what their mandate is. The Government never answered.

That Ontario Critical Care COVID Command Centre no doubt relied on reports from the Government’s Bioethics Table. As noted earlier in this report, we have seen the Bioethics Table’s September 11, 2020 report, but not its subsequent January 12, 2021 report. Moreover, in its September 1, 2020 report, the Bioethics Table did not share with the Government or the Ontario Critical Care COVID Command Centre some key parts of our input– parts of our input with which the Bioethics Table evidently did not agree.

Third, that “standard of care” label, even had it correctly applied here (which it does not) cannot excuse or exempt doctors, hospitals or the Government from the serious Charter of Rights and Human Rights Code violations that the AODA Alliance and other disability advocates have raised with the January 13, 2021 triage protocol and with Ontario’s earlier March 28, 2020 triage protocol. The “standard of care” label, even if it were properly applicable here, does not immunize doctors, hospitals or the Government from their duty to comply with the Charter of Rights and the Ontario Human Rights Code.

Fourth, if the Bioethics Table gets its wish, and the Ontario Government tries to suspend the Health Care Consent Act so that doctors can withdraw critical care from a patient over that patient’s objection, the “standard of care” label, (even if properly applied here) would not exempt a doctor from the risk of committing a culpable homicide contrary to Canada’s Criminal Code by actively and intentionally withdrawing needed critical care from a patient over their objection.

Fifth, for this “standard of care” label to properly apply, it must first be shown that the physicians who developed it are in fact experts in the rationing of life-saving critical care. However, with great respect to them, they are not. They, and the Ontario medical profession have no prior expertise in rationing life-saving critical care, or in reliably predicting, for triage purposes, which patients will survive for a year after receiving critical care. This is not displaced by any bald claims that the January 13, 2021 Critical Care Triage Protocol is evidence-based.

Last summer, the Bioethics Table told us that Ontario’s medical profession has never before had to engage in critical care triage. It is our understanding that doctors are not trained to perform such critical care triage as part of their medical education. As well, neither physicians nor bioethicists must be trained in, nor claim to be experts in, fundamental human rights and constitutional law. That lack of expertise in human rights and constitutional law is amply evidenced by the various deficient critical care triage protocols and the arguments that have been made to defend them.

Sixth, it would be inaccurate to conclude that the January 13, 2021 Critical Care Triage Protocol is a compelling “standard of care” to which courts should defer, by virtue of the way it was developed. To justify it, it was said to be more than a decade in the making, the result of extensive work and consultation and reflecting the consensus of relevant expert opinion. During the January 23, 2021 webinar, that over-inflated and exaggerated claim was presented to attendees to support a call for frontline physicians to feel comfortable and safe when using that protocol. Dr. Andrea Frolic, a member of the Bioethics Table and identified as a key player in the January 13, 2021 Critical Care Triage Protocol’s development, said she would explain how the critical care triage protocol came about

“…to reassure you that this isn’t some form of moral improvisation but it’s a practice standard that is more than a decade in the making.”

It is an exaggeration to claim that this triage protocol was over a decade in the making”. The January 23, 2021 webinar was told that some work was done on this topic over a decade ago after the SARS outbreak. After that, no action on it was described at that webinar until last February. One year ago, when the COVID-19 pandemic was first emerging, the original March 28, 2020 critical care triage protocol was prepared in a rush and, we add, in secret.

The public was not given a chance for input into it. The public was not told that a critical care triage protocol was being developed, or that it had been sent to hospitals. The public only learned about it when it was leaked to some within the disability community. That led it to be publicly condemned by over two hundred disability organizations as disability discriminatory.

During the January 23, 2021 webinar, Dr. Andrea Frolic said that the January 13, 2021 Critical Care Triage Protocol was the result of consultations with the Ontario Human Rights Commission and community groups. This omits critical facts. For example, it leaves out the fact that the Ontario Human Rights Commission and community groups like the AODA Alliance publicly objected to key parts of the triage plan and the secretive way it has been developed.

After months of delay, the AODA Alliance and some other disability organizations got a chance to give input on an earlier draft of the critical care triage protocol last summer. It was good to have that opportunity. However it is now clear that several important issues, addressed in this report and elsewhere, were not identified with us for comment at that time e.g. the possibility of directions to EMTs to withhold critical care from some patients who need that care.

It is good that in its September 11, 2020 report to the Ontario Government, the Bioethics Table incorporated some of the input from disability advocates. However, the Bioethics Table rejected a number of key points that disability advocates presented. It similarly rejected key points that the Ontario Human Rights Commission publicly emphasized.

The Bioethics Table gave no reasons for doing so. The Bioethics Table’s September 11, 2020 report to the Government does not pass on to the Government the important points of input from the disability community and the Ontario Human Rights Commission that the Bioethics Table evidently rejected. Of the points that the Bioethics Table had incorporated, some did not find their way into the later January 13, 2021 Critical Care Triage Protocol. As noted earlier, the Government and its internal Ontario Critical Care COVID Command Centre did not consult us or the public on this topic. That meant that our input in key respects died before reaching those making the actual decisions on the design of Ontario’s critical care triage plan.

Seventh, any effort by the Ford Government to distance itself from this protocol is misleading and purely cosmetic. The Government appointed its advisory Bioethics Table. The Government undoubtedly created the Ontario Critical Care COVID Command Centre that approved the January 13, 2021 Critical Care Triage Protocol. The Ontario Ministry of Health is a partner in Critical Care Services Ontario. CCSO ran the January 23, 2021 webinar, and clearly is playing a role in the development and implementation of Ontario’s critical care triage plan.

Moreover, during that webinar, Dr. Andrea Frolic acknowledged that the earlier March 23, 2020 critical care triage protocol (the predecessor to the January 13, 2021 Critical Care Triage Protocol) was created under the leadership of herself, Dr. James Downar and others, and was then sent to all hospitals by Ontario Health. Ontario Health is a creation of and part of the Ontario Government. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…So under the leadership of James Downar, myself and others, a draft document was published by Ontario Health and sent to health care organizations back in March.”

  4. Merely Proclaiming that Human Rights Should Be Respected Is No Defence to a Disability-Discriminatory Triage Protocol

Part of the legal strategy to defend the January 13, 2021 Critical Care Triage Protocol is to argue that there is no intent to discriminate, and that to the contrary, the protocol states that human rights are to be respected in the triage process. For example, the February 7, 2021 Globe and Mail quoted a key member of the Bioethics table as follows:

“Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.”

It is good that the full, lengthy January 13, 2021 triage protocol document (over 30 pages) includes some invocations of human rights. However, this does not immunize that protocol and hospitals or doctors who refuse a patient needed critical care from challenges under the Ontario Human Rights Code and/or the Charter of Rights.

First, the protocol’s references to protecting human rights provide no defence., This protocol first proclaims a commitment to human rights, but then goes on to direct human rights violations, e.g. by using the Clinical Frailty Scale. The Ontario critical care triage plan also urges use of the disability discriminatory Short Term Mortality Risk Calculator, addressed earlier in this report.

Second, it is no defence for the protocol’s authors to proclaim that there was no intent to discriminate. It is well-established that it is not necessary to prove an intent to discriminate, and that the absence of an intent to discriminate is no defence to a human rights or Charter equality rights complaint. We explained this in detail to the Bioethics Table last summer.

Third, as far as we have found, there is no explanation of human rights concerns or how to operationalize them in the triage process, in the all-important short checklists accompanying the January 13, 2021 triage protocol (which we expect is all of that document that busy triage doctors will have time to read) or in the online Short Term Mortality Risk Calculator (which, as detailed above, uses disability-discriminatory criteria) or the January 23, 2021 training webinar that instructed over 1,100 people including frontline doctors on using the January 13, 2021 critical care triage protocol and calculator.

In short, the January 13, 2021 critical care triage protocol’s statements about human rights are little more than window-dressing. They are aimed at outside bodies, seemingly to create the image that human rights are being protected in the critical care triage process.

At the same time, the core messaging to triage doctors is bereft of human rights content. It gives disability-discriminatory instructions to triage doctors. Those triage doctors are not told, for example, that the Bioethics Table, in its earlier September 11 Report, stated the following:

“However, the Bioethics Table learned through its consultation with disability rights experts that the use of CFS in the context of critical care triage raises significant concerns that persons with disabilities, many of whom may need assistance with activities of daily living, would score higher on the CFS than an able-bodied person and that this could lead to the over-triaging of persons with disabilities.”

 5. There is an Even greater Risk that Each Triage Doctor Can Become a Law unto Themselves than the AODA Alliance Previously Identified

As noted earlier, the AODA Alliance previously showed how the January 13, 2021 Critical Care Triage Protocol risks making each triage doctor a law unto themselves. The January 23, 2021 webinar reveals that this risk is even greater. This is so even though attendees at that webinar were erroneously told the opposite. Dr. Andrea Frolic said:

“It is protocol-driven rather than really leaving it up to the discretion of the bedside clinician.”

First, during that webinar, Dr. James Downar recommended that in advance of having to make critical care triage decisions, physicians should survey their hospital case load to identify those patients who might be likely to be subject to triage. He advised doctors to assess those patients’ short term mortality risk in advance. This is so that if those patients later get sicker and need critical care, those assessments will already be completed. Dr. Downar stated:

“So many people on this call who may not operate in the critical care area might be asking, okay, when to assess criteria. Do you only wait until they meet eligibility criteria. And it’s probably not a good idea to wait. Again, you should not be making triage or deprioritization decisions for people who have not had full assessments done. Informal or casual assessments may lack rigour, and they can anchor future decision-making, and so it’s probably best to avoid these sort of informal assessments.

But early assessments before they become critically ill will be very helpful for things like bed planning or establishing what information you might need to get some more certainty. So probably a good idea to try to get ahead in many cases, in some certain situations, and so this is less time pressure.

And so again you also don’t want to it on literally everybody, because these are not going to be easy conversations and they may compromise the therapeutic alliance and cause frustration. And it’s probably not feasible to do it for literally everybody admitted to hospital. So we’re just going to propose a bit of an approach for how to maybe prioritize your assessments. …

…I would say you’d probably best to focus on people who you think are most likely to deteriorate in the near future, or people who are most likely to actually be de-prioritized, depending on the level of triage that you’re at. So, everybody under your care, if for example you’re an MRP (i.e. most responsible physician) on the ward or in an emerge, it’s not a bad idea to think about just quickly scanning over and doing an initial assessment yourself of the criteria, and saying okay I think this person might meet Level 1 criteria for de-prioritization. I should probably, and if we’re at Level 1, triage now, I should probably take everybody who I think might be a Level 1, and make sure that I do formal assessments on those individuals first, so that if there is a decision to be made, it will be less time-pressure, and do a full assessment on those individuals.”

This may at first seem efficient. However, it gives a huge unmonitored, unaccountable and potentially arbitrary discretion to each doctor to unilaterally decide which patients to subject to an early short term mortality assessment. They could thereby formulate early first impressions of their patients for triage purposes.

Each doctor is left to decide for themselves who to subject to this pre-screening, and by what process. Once so pre-screened, a patient that is rated to have a high mortality risk might find themselves singled out for earlier triage from critical care, to their detriment, simply because they were unlucky enough to have a doctor earlier decide to pre-screen them.

The doctor need not forewarn their patients that they are being subjected to this pre-screening. There is no due process for patients to guide or constrain this process.

As a second way that triage doctors risk becoming a law unto themselves, during the January 23, 2021 webinar, Dr. Steven Bellemare said the intent of the January 13, 2021 triage protocol is to remove subjectivity from triage decisions. However he conceded that different people can read a document differently. From this, we conclude that there is in the protocol the very kind of subjectivity or wiggle room that can lead to different doctors taking different approaches to the same patient profile. Dr. Bellemare said:

“One of the key issues to consider is to think about whether or not the people in your hospital, your team, have clarity with regards to the intention of the emergency standard of care, and with regards to its application. And, you know, it’s meant to standardize the approach, but again, even though you may read the same document, people may think of it differently, and interpret it differently.

It goes a long way to help make sure that things are standardized and protocolized, but I think we have to think seriously about the value of simulation, in applying this protocol, and if you play a leadership team in your hospital, I would invite you to think about when is the time to actually think about running some drills, to apply this protocol. Because the time to start thinking about these issues is not when it is decreed that it is going into place, into application. It’s right now, which is why we’re having these conversations.

And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The element of subjectivity in this protocol contributes to each triage doctor becoming a law unto themselves, whether or not they are ever aware of this. It corroborates Dr. James Downar (reportedly the protocol’s author) telling us at meetings of the Bioethics Table last summer that there is subjectivity to the application of the protocol’s Clinical Frailty Scale, as the AODA Alliance confirmed in writing in its August 30, 2020 written submission to the Bioethics Table. That written submission states the following, which was immediately made public and whose accuracy has never been disputed:

“In discussions with some members of the Bioethics Table, Dr. James Downar candidly acknowledged that there is subjectivity in how the CFS would be applied to a specific patient. That is fatal to its use for critical care triage.”

This is also consistent with the opinion of the Michael Garron Hospital’s head of intensive care Dr. Michael Warren, quoted earlier in this report, who told CBC Radio with reference to this protocol that despite it, doctors may “guesstimate” and “improvise” when it comes to assessing whether a patient is likely to survive for more than one year. Of necessity, guestimates and improvisations provide ample room for subjectivity on the part of a well-intentioned triage doctor.

As a third development that contributes to each triage doctor becoming a law unto themselves, the January 23, 2021 webinar attendees were instructed that a patient’s admission to critical care is on a trial basis. Dr. Downar stated:

“For those who do meet prioritization criteria and again are admitted, they are admitted for a trial of critical care. Obviously, as we all would say, it is a trial, and you communicate appropriately.”

We dispute this characterization of critical care for a patient. Who is the judge of the “trial”? How long does the trial last? What appeal would there be if there is a dispute between patient and doctor over the “trial’s” duration, conduct or results? To characterize admission to critical care as a “trial” gives a sweeping, open-ended discretion to doctors to apply their own subjective standard to that “trial”.

As a fourth subtle feature that contributes to each triage doctor becoming a law unto themselves, the January 13, 2021 Critical Care Triage Protocol is ambiguous on the presumptions and burden of proof that a triage doctor should apply when making an assessment of a patient’s likelihood of surviving for at least a year after admission to critical care. Should the doctor presume that the patient will survive that long unless their clinical assessment proves otherwise? And if so, should the doctor not exclude the patient from critical care unless the doctor is certain that the patient has less than a year to live, upon admission to critical care? Does the patient being assessed for triage get the benefit of the doubt?

During the webinar, the room for a lack of clarity on this became clear to us, though not necessarily to the webinar’s attendees. Dr. Downar stated:

“It is entirely possible that you may not be certain and I think you need to be up-front and honest about that, right? If there’s a situation where you just don’t know, you don’t have enough information, it’s important to indicate that, and then also indicate that probably the person should be receiving critical care pending a re-assessment if it would be otherwise indicated, but also be very clear about what information you might need, and set on a path of trying to gather that information to resolve the uncertainty.”

While that describes Dr. Downar’s view, absent clarity on this, different doctors are free to set their own rules in their own minds on which presumptions to make and on the degree of certainty to require. That in turn gives each triage doctor even more discretion, further making each a law unto themselves.

One might at first think that it is not appropriate to talk about burdens or standards of proof when it comes to medical decisions. However, these are highly relevant. A patient’s access to life-saving critical care is on the line. Triage doctors are here being assigned to allocate this scarce resource, applying this triage protocol. That makes features like the burden and standard of proof entirely central for decisions that doctors would make.

A fifth subtle way that doctors can become a law unto themselves, each deciding critical care triage issues based on their own sense of who should get triaged out, emerges from the candid though seriously disturbing recognition during the January 23, 2021 webinar that if doctors are not given the power to withdraw critical care from a patient over their objection, some doctors will be more reluctant to give some patients needed critical care in the first place. Dr. Andrew Baker, incident commander on Ontario’s Ontario Critical Care COVID Command Centre gave this as a reason why the Ford Government should suspend the Health Care Consent Act – a measure to which we strenuously object.

What Dr. Baker described would be a subtle form of covert critical care triage. In it, a doctor departs from their traditional role of only deciding who gets critical care by an assessment of whether that patient needs it. There is no articulated standard to govern this. Thus, how much each triage doctor would do it is left to them to decide.

 6. Ontario’s Critical Care Triage Plan Risks Unfairly and Arbitrarily providing Different Amounts of Oversight of Triage Decisions from Hospital to Hospital

The AODA Alliance previously showed that the January 13, 2021 critical care triage protocol provides no due process for patients whose lives are at risk during critical care triage. Making this worse, we learned from the January 23, 2021 webinar that each hospital is free to decide whether critical care triage decisions will be made by two doctors or by a more thorough and extensive review team. As quoted at greater length earlier in this report, Dr. Steven Bellemare told the January 23, 2021 webinar attendees:

“And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The amount of scrutiny and oversight of critical care triage decisions therefore could arbitrarily vary from hospital to hospital. Patients facing such a danger to their life deserve greater and more consistent protection. The level of scrutiny should not be left to each hospital to decide. There is no indication that the Government will monitor these inconsistent practices from hospital to hospital around the province, or will report on them to the public.

  7. The Training for Frontline Critical Care Triage Doctors Wrongly Minimizes the Enormity of Their Critical care Triage Decisions and the Importance of Being Legally Accountable for Them

It is very harmful that the January 23, 2021 webinar minimized and downplayed for triage doctors the enormity of their decision to deny a patient needed critical care. It also harmfully encouraged them not to be mindful of the possible legal consequences of refusing a patient needed critical care. It is inevitably in the nature of critical care triage that if triage occurs, some patients will thereby die. However, it is harmful to dilute, downplay or minimize the doctor’s role in this. It is also harmful to minimize the importance of being alive to their legal accountability for it, or to use incorrect or misleading euphemisms to describe a triage decision.

As a first illustration, it was wrong for Dr. Andrea Frolic to encouraged doctors not to refer to a withdrawal of critical care from a patient as a “withdrawal” of care. Yet that is what it is. Dr. Frolic said:

“I really appreciated the comment in the Q and A that we should stop using the term ‘withdrawing care’. I really appreciate being called on, on that, because in fact care should never be withdrawn from patients. But certain treatments specifically invasive treatments might be withheld or withdrawn in this context, and I think one of the ways that we can continue to form trusting alliances with patients and families is by emphasizing what we will continue to. We will continue to medically manage patients. We will continue to palliate patients. We will continue to offer psycho-emotional support and comfort care.”

To a critical care patient who needs and is receiving critical care, a physician suddenly taking that critical care away from them over the patient’s objection is “withdrawing care.” The fact that the patient would then be offered a lesser level of care which can’t save their life does not change the fact that there has been a withdrawal of the very care they need and want to try to save their life.

As a second illustration of this, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, incorrectly said that refusing critical care should not be called an “exclusion.” He preferred to euphemistically describe this as prioritizing. Dr. Downar said:

“Again, we’ve looked over a number of different approaches to how to implement or how to protocolize a triage approach, and we tried to pull together, you know, sort of different ideas about, you know, sort of how to, you know, decide about risk, and benefit and how to try to make a system that that would be proportionate to need rather than more categorical in nature, while still being somewhat objective and rigourous. And this is what we came up with, was essentially to try to determine a prioritization system, and to be very clear, this is prioritization, not exclusion, right? And so we are at the point of running out of resources, nobody is excluded ever. They’re just a matter of prioritization.”

Yet contradicting this, if a patient is ranked too low for purposes of critical care triage, they would be excluded from receiving critical care. To the patient who is refused care, they don’t feel “prioritized”. They feel that they have been refused critical care and that they have been excluded from refusing critical care. Indeed, Dr. Downar later talked during the webinar about the fact that if critical care triage is to occur, certain groups of patients will be excluded or not given critical care, depending on the level of triage that is proclaimed.

As a third illustration, the webinar wrongly and subtly downplayed a triage doctor’s responsibility for the enormity of what a triage decision means for a patient who is denied needed critical care. Frontline doctors were told in effect in connection with their decision to deny a patient needed critical care that they should not feel a sense of “agency.” (I.e. that the doctor’s refusing a patient needed critical care, is an agent that contributes to the patient’s death) This was said to be because it is the pandemic and patients’ health problems that are killing people. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“And I think one of the most challenging things it puts us in the position very uncomfortably of imagining that we have personal agency in the life or death of patients that we are applying this protocol to. Of course, this is in some ways an illusion, because it is the pandemic that forces these decisions upon us as well as the underlying conditions of the patients and the resources available to us. But nevertheless, it can create a real sense of real moral, hazard and injury as we anticipate being the ones to ultimately render a decision.”

Dr. Frolic also stated:

“There’s no getting out of the experience of moral injury for us who are facing this pandemic, but our hope is that it can be mitigated by the knowledge that this is going to prevent deaths and that it is a standard of practice that is going to be used across the province. It’s very efficient to use once mastered and it allows you in conversations with patients and families to de-personalize the decision, and really to focus on caring for your patient knowing that in the end, you are not the one making the life-and-death decision based on this protocol.”

This dangerous and erroneous message is further driven home by the online Short Term Mortality Risk Calculator that the webinar encourages triage doctors to use. As addressed earlier in this report, that calculator depersonalizes and dehumanizes the critical care triage process by letting a triage doctor think that they just need to key into a website in their observations of a patient and then the calculator will decide on the patient’s short term mortality risk. That signals to the doctor that it is not the doctor’s ultimate decision, but that of an online calculator.

Of course, a patient’s physician is not responsible for the fact that the patient needs critical care to live. However, that does not reduce the fact that if a doctor decides to refuse critical care to a patient who needs and wants it, the physician’s decision contributes to accelerating that patient’s death.

It is important for any doctor making a life-and- death critical care triage death decision to feel a keen sense of responsibility for it, heightened by their awareness that there can be real legal consequences for it. Yet to the contrary effect, and as a fourth illustration, the January 23, 2021 webinar harmfully but authoritatively undermined any such sense of personal responsibility and legal accountability. The law exists to help make professionals like physicians feel that they can be held accountable for their actions. Yet speaking for the Canadian Medical Protective Association (CMPA), the company that provides physicians’ medical malpractice insurance and that funds their defence, Dr. Steven Bellemare told doctors in substance that as long as they follow the January 13, 2021 triage protocol they should not worry about being sued. Dr. Bellemare said:

“With that said, the message, the key message that I want you to hear today is that the CMPA is there for you. …We’ve always been there for you and we’ll continue to be there for you. So my message is really: Don’t worry about the potential for medical legal problems. Don’t worry about the potential for College complaint or a lawsuit, because sometimes, despite your best efforts, they can still happen. We will not let you down. We’ll be there to protect you at those moments.”

 8. A Substantially Incorrect Idea of “Equity” Was Presented to Frontline Doctors Being Trained to Make Critical Care Triage Decisions

The AODA Alliance raises a serious concern with the misunderstanding of “equity” during training given to frontline doctors on how to implement critical care triage in Ontario. During the January 23, 2021 webinar, presenters made several unparticuarlized references to the importance of “equity” in the critical care triage process. However, the only specific description of an “equity” concern was given by presenter Dr. Andrea Frolic. She said that if doctors cannot unilaterally withdraw critical care from a patient who is already receiving it, this could create an inequity between some patients already receiving critical care on the one hand, and patients in the lineup to get into critical care on the other. Dr. Frolic stated:

“So we want to recognize we are using the word triage to describe the situation about the allocation of a scarce resource in a way that is fair and transparent and equitable, and in alignment with this standard. So the STMR (i.e. the short term mortality risk ) and the tools are basically identical between the emergency standard of care and a protocol that would include the provision to allow for the rare occasion when withdraw of life-sustaining treatment in the ICU would be required without the consent of the patient and family.

To allow that particular aspect of the Health Care Consent Act would need to be altered by an executive order of Cabinet, and it was felt that while that executive order is not currently in place, it was very important to begin to socialize the emergency standard of care, the STMR tools, and to prepare our communities, our health care colleagues and health care system for implementation, whether or not the executive order comes down.

But there is a lot of concern around the province among clinical colleagues and advocates around really ensuring that there is equity in the application of this standard, recognizing that without the executive order, it could introduce inequity, where it would only apply to people waiting for critical care, or people who become critically ill later, and it doesn’t apply to people who already had the benefit of critical care, who happen to sicken earlier and are already in the ICUs there are many conversations happening with members of our Government and Critical Care Command Centre and other stakeholders to really try to work out how to proceed. But I think the important thing at this point is to continue to socialize the emergency standard of care, get familiar with these tools, prepare your organizations and your regions for implementation, and to stay tuned as Dr. Baker has indicated that when this document or this process does get triggered, there will be clear direction around how it gets implemented, where it gets implemented, and whether it is the emergency standard or the protocol that includes patients already in ICU.”

Yet this is not an actionable equity, equality or human rights issue under the Ontario Human Rights Code or the Charter of Rights. It is bad enough that doctors were not trained on true human rights issues that the Ontario critical care triage plan raises. It makes things worse that they are misdirected into this so-called “equity” issue which is far removed from the core equality and equity issues that should be their priority.

This misunderstanding was exacerbated during this webinar when Dr. Steven Bellemare told frontline doctors, being trained to conduct critical care triage, that the aim is to treat all patients the same when it comes to critical care triage. Yet the Supreme Court of Canada has made it clear for decades that at times, treating all people the same can itself result in unlawful discrimination. Similarly, Dr Bellemare said:

“ As Daphne was mentioning, not only is this emergency standard of care an important step in decreasing the medical legal risk that you might face as a physician or even that a hospital might face, but more importantly it’s also a critical way to ensure that every patient has a just, equitable and consistent access to a limited resource, which is critical care. And so by enacting an emergency standard of care, essentially, we’ll be making sure that everyone in Ontario on a population basis gets treated the same way.”

 9. Some of Those Central to the Planning for Critical Care Triage in Ontario Call for Openness and Transparency

Contradicting the Government’s relentless secrecy that has surrounded Ontario’s critical care triage plans over the past year (described above), medical leaders in the development and implementation of Ontario’s Critical Care Triage Plans have stressed the importance of openness and transparency in the approach to critical care triage in Ontario. For example, at the January 23, 2021 webinar, Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“I think it’s exceptionally important for our group and the system in general to be completely transparent. More problems are created by the appearance or the actual withholding of information than are created by sharing it openly.”

 10. The Health Ministry Still Refuses to Talk to The Disability Community About Critical Care Triage Plans, But is Clearly Talking to the Health Sector and Their Insurance Companies

From the January 23, 2021 webinar, we discovered that the Ford Government is in direct discussions with the health care sector, including with the insurance companies that insure hospitals and physicians for lawsuits for negligence and malpractice. We understand that the aim is to secure the maximum protection for doctors. Speaking for the Canadian Medical Protective Association, Dr. Steven Bellemare said:

“ And be aware that the CMPA is always working with governments and with HIROC which is the insurance company for the hospitals, about this issue. We’re in constant communication. We make representations on your behalf to make sure that if and when this goes into place, you’ll have the best protections possible.”

This is consistent with the troubling agenda on this issue voiced by the Government-appointed Bioethics Table. Its September 11, 2020 report to the Ford Government on critical care triage called for triage doctors to be protected from liability for their triage decisions. Yet as noted earlier in this report, those making such life-and-death decisions should never feel that they are immunized from legal responsibility for their decision, whatever they do. That report recommended:

“The following steps should be immediately taken in order to further develop and implement an approach to critical care triage in the context of a major surge in demand in Ontario:

…Ensure liability protection for all those who would be involved in implementing the Proposed Framework (e.g., physicians, clinical teams, Triage Team members, Appeals Committee members, implementation planners, etc.), including an Emergency Order related to any aspect requiring a deviation from the Health Care Consent Act.”

 Part IV Conclusion — Doctors, Hospitals and Emergency Medical Services, Beware the Protocol, Directions and Training You Have Been Given on Critical Care Triage

Physicians, hospitals, emergency medical services and others should all beware the protocol, directions and training in Ontario on critical care triage. These all raise serious human rights and constitutional concerns. They follow them at their peril.

The AODA Alliance and other disability advocates have unsuccessfully tried to raise many such concerns with the Ford Government and with its advisory Bioethics Table. The Health Ministry won’t talk to the AODA Alliance or answer its detailed letters that raise concerns in this area. The Bioethics Table in substance rejected key parts of our advice, gave no reasons for doing so, and did not even communicate to the Government our advice that it rejected in its September 11, 2020 report to the Government.

Similarly, the Government’s Ontario Critical Care COVID Command Centre, which appears to be calling the shots on when and where critical care triage would occur, and how it is to be conducted, has similarly not spoken to us to get our input. It approved the seriously deficient January 13, 2021 Critical Care Triage Protocol.

It would be unwise for anyone to rely on the deeply-flawed legal defence strategy that has been formulated to defend the January 13, 2021 Critical Care Triage Protocol and those who implement it. The paper trail showing the serious problems with the Ontario plan for critical care triage is very public. It has been shared widely with the media.

It would similarly be very unwise to rely on the core messages conveyed to frontline doctors and hospitals in the January 23, 2021 webinar. That webinar tried to give its audience a strong sense that doctors and hospitals can with great confidence use the January 13, 2021 Critical Care Triage Protocol and rely on it as a defence to any legal responsibility for any deaths of patients that result. That webinar’s troubling message was that doctors should stick together as a team in this critical care triage effort, especially in the face of the expected anger and upset that will come from patients who are refused critical care and their families.

For example, the webinar’s co-host David Neilipovitz said this regarding the January 13, 2021 Critical Care Triage Protocol in the webinar’s introduction:

“We want you all of you to have reassurance in how it was created, with equity, fairness, proportionality, autonomy, accountability and other underlying principles directing its creation.”

Those watching that webinar would not have any idea that serious human rights and constitutional objections have been raised by disability advocates and by the Ontario Human Rights Commission to Ontario’s plan for critical care triage. They would have no idea that these have either been rejected or have not even been considered by those approving that plan, and that no reasons for rejecting these concerns have been given.

For example, the webinar’s 1,100 viewers would have no idea that serious human rights concerns about the use of the Clinical Frailty Scale as a triage tool have been raised by the AODA Alliance, by the ARCH Disability Law Centre, by the Ontario Human Rights Commission and by others. If physicians use the critical care triage short checklist or the online Short Term Mortality Risk Calculator, they will have no idea about these concerns, and will not be alerted to any human rights considerations that should come into their minds.

Doctors, hospitals and others should be worried about the seriously flawed legal defence strategy that has been formulated to respond to human rights and constitutional concerns, such as those raised by disability advocates. By this strategy documented earlier in this report, the January 13, 2021 Critical Care Triage Protocol will offer the world an outward-facing proclamation of a commitment to respecting human rights. “We are human rights-focused people,” Dr. James Downar told TVO’s The Agenda with Steve Paikin in a broadcast recorded on the day the January 13, 2021 Critical Care Triage Protocol was being sent to all Ontario hospitals.

Yet, a very different picture is painted by the key inward-facing tools that frontline doctors will use in busy emergency rooms during the chaos that would ensue if COVID-19 overloads hospitals so much that critical care triage is required, and the webinar that trains them on how to use those tools. The January 13, 2021 Critical Care Triage Protocol’s short critical care triage checklist, the Short Term Mortality Risk Calculator and the January 23, 2021 webinar that gives training on how to use them says nothing whatsoever about human rights, with one misleading exception. The webinar reports to attendees that the Ontario Human Rights Commission and advocacy groups were consulted in the protocol’s development, as if to boost that protocol’s dependability, without also explaining that the protocol includes features that the Ontario Human Rights Commission and advocacy groups had opposed. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…and so in the intervening months there has been very careful relooking and examination and redrafting of that early version to really align with professional ethics and principles. It’s meant extensive stakeholder engagement with the Ontario Human Rights Commission, advocacy groups and community stakeholders, as well as consultation with medical experts to really refine the core tool of this standard of care which is the Short Term Mortality Risk assessment.”

That webinar’s discussion of the law primarily as focused on “risk management”. As noted earlier, that is a euphemistic way of saying the risk that a doctor and/or hospital may get sued if a patient dies as a result of refusing them life-saving critical care they need. There was no discussion of the patient’s legal rights. This is a distorted one-sided perspective.

That webinar lulls attendees to think that the critical care triage protocol has been thoroughly lawyered, that a defence is available for its users, that maximum legal protections for them is being discussed with the Ford Government, and that they in substance need not worry about lawsuits. That is misleading and dangerous, from the perspective of patients. For example: Dr. Andrea Frolic said

“The CPSO has already come out publicly to support this emergency standard, if required. It has undergone extensive legal review by multiple legal experts. It is a peer-reviewed and evidence-based standard, and Dr. James Downar, who follows, will speak to the development and its enactment.”

Of the two lawyers and one CMPA doctor who jointly presented at the January 23, 2021 webinar, none had ever discussed with us any of the constitutional, human rights or other concerns that the AODA Alliance and other disability advocates have been raising over the past ten months with Ontario’s critical care triage plan. None of their comments during this webinar responded to or even mention any of these concerns.

Webinar attendees were repeatedly told that the January 13, 2021 Critical Care Triage Protocol incorporates principles of fairness, equity and ethics, among other things. Attendees were not told that disability advocates like the AODA Alliance disputed this, and have raised the serious concern, among other things, that it is utterly lacking in due process or procedural fairness for patients.

That webinar did not encourage provision of due process for patients and families facing the prospect of critical care triage. The webinar’s discussion of dealing with patients and families focused on clarifying during a patient’s admission to hospital if patient and family want critical care, and if not noting it on the file. It focused on giving the patient and family the bad news and reasons for it, once a triage decision was made to their detriment. There was nothing about getting the patient’s input during the triage decision-making deliberation.

That webinar properly conceded that there is a risk of triage doctors acting on unconscious bias when making critical care triage decisions in the absence of a proper triage protocol. However, in its effort to market the January 13, 2021 Critical Care Triage Protocol to frontline doctors and hospitals, it creates the incorrect impression that that protocol eliminates the danger of implicit bias. Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“And then of course if we don’t have a plan that has all the benefits that is included in this one, there’s the potential for implicit bias and divergent approaches.”

That webinar encourages doctors around Ontario to now run simulations of critical care triage decisions, in order to become familiar with using the January 13, 2021 Critical Care Triage Protocol. From the simulation example provided to the AODA Alliance and other disability advocates last summer at our request by the Bioethics Table (lead by Dr. James Downar, there is much room for all Ontarians to worry. At the very least, each hospital should immediately make public the content and results of such simulations. The Ford Government should track these, document the extent to which they lead to consistent or inconsistent results, and immediately make that all public in real time.

No doubt, frontline doctors do not want the responsibility of deciding who lives and who dies during critical care triage. There is no suggestion here that they do. However, that does not diminish any of the concerns that this report identifies.



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If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield

February 1, 2021

            SUMMARY

Is the Ford Government on the verge of trying to do a dangerous tap dance in a constitutional minefield? Imagine this scene: In the days ahead, a somber Premier Doug Ford appears at his televised COVID-19 news conference. His voice is very serious. His face looks terribly distressed.

“I must today announce a drastic measure that the COVID-19 emergency requires us to take,” he might say. “We have tried everything to avoid this for the past twelve months, and have taken every step short of this drastic new step I must announce today.”

Imagine him then announcing that his Cabinet has passed some sort of executive order or regulation that temporarily suspends Ontario’s Health Care Consent Act. That legislation forbids a doctor from withdrawing life-saving medical care from a patient, without the consent of the patient or, if incapacitated, their substitute decision-maker. It provides a process for the Consent and Capacity Board CCB to be engaged in case of a dispute.

One could imagine Premier Ford saying that the Government does not want to do this, but it was recommended by its Bioethics Table, a panel of medical and bioethics experts. “We have no choice.”

The AODA Alliance wants to be 100% clear that as far as we know, the Government has not yet done this. We and, no doubt, the Government all hope it does not happen. However, we must now turn our minds to this possibility. This is because the January 21, 2021 reported that the Ford Government’s external advisory Bioethics Table recommended to the Government that it should take just such a step. The article was entitled “Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals.” Neither the Government nor the Bioethics Table has denied this report, to our knowledge.

Whether or not such an order or regulation is a good thing to do, there is ample reason to seriously question whether it is something the Ford Government can do at present, by Cabinet simply passing some sort of regulation or executive order. In This AODA Alliance Update, we explain why. The ARCH Disability Law Centre released a public statement on January 28, 2021 which raises serious concerns, based on its expertise in disability law.

The Ford Government is not discussing this issue in public. Whatever it is discussing, it is taking place behind closed doors.

Issues we raise in this Update will be a matter of serious concern both for patients and doctors. Doctors’ well-known Hippocratic oath is absolutely central to their professional and ethical duties and their sense of mission. That oath requires every doctor to swear or affirm, among other things, that they will “do no harm”. How can a doctor be faithful to that oath if they were to actively withdraw life-saving critical medical care from a patient who needs that care and who has not consented to its being withdrawn?

We call on the Government to immediately end its protracted secrecy on this issue, and on the overall topic of critical care triage. These topics, and the Government’s plans, must be fully discussed and debated publicly. The Government should come clean on whether it is considering the possibility of trying to override or suspend the Health Care Consent Act. Most important, the Government should now categorically state that it will not try to suspend or override that important law, in whole or in part.

We should not have such a drastic step as this sprung on us and all Ontarians at the last minute, by a somber announcement such as that imagined above, and with an emergency used as an excuse for months of unwarranted Government secrecy.

            MORE DETAILS

 1. How This Might Work in Practice

What could it mean to seriously ill patients in hospital and their families if the Ford Government took the drastic action we address in this Update? Imagine a seriously ill patient who needs life-saving critical care in a hospital. Imagine that they are admitted to an Intensive Care Unit and begin receiving critical care. However, the COVID-19 pandemic keeps straining our hospitals, so much that the Ford Government decides that there are more critical care patients than there is capacity in hospitals to handle. Government decides that critical care bed, ventilators and services must be rationed or triaged. Under the January 13, 2021 triage protocol which the Government sent to Ontario hospitals to direct how such triage would happen, doctors would choose who, in the lineup for critical care, would be admitted to critical care. Some would be told there is no room. That is quite likely a death sentence for those who are not admitted. That would be bad enough.

However, it would be even worse if doctors could also evict a patient from their spot in critical care, partway through their treatment, to make room so another patient could be admitted whom the doctors feel has a better chance of surviving. Although it is in some ways unclear on this, the January 13, 2021 triage protocol may not direct hospitals generally to evict critical care patients in such situations from critical care. We wrote Health Minister Christine Elliott on January 18, 2021 to ask for this to be clarified. As with all our letters to her on the triage topic, she has not answered.

According to the January 21, 2021 edition of the National Post, the Government’s advisory Bioethics Table has recommended that the Ford Government act even more drastically than the January 13, 2021 triage protocol. They have reportedly recommended that the Government pass some sort of order or regulation to give doctors the power to withdraw critical care from a patient who is in the middle of receiving it and who needs it, as part of critical care triage. It is to that possibility that we are turning attention here.

As stated above, the Government has not said that it has implemented the Bioethics Table’s drastic recommendation on this. That gives us no comfort, because the Government has said very little about the entire topic of critical care triage. What it has said at all about critical care triage has, at times, been of questionable candor and accuracy.

How might this situation play out in a hospital? If the Ford Government passed some sort of regulation or executive order, as the Bioethics Table recommended, to suspend the Health Care Consent Act, and if critical care triage is directed to take place, doctors in a hospital might look at a critical care patient (We’ll call him Tom) who is already receiving critical care. The doctors might decide that Tom has less than a year to live and that his chances don’t look good. The doctors might then look at those patients in the lineup to get into critical care, and conclude that one or of them (We’ll call her Betty) has a better chance of surviving a year or more.

The doctors would be able to withdraw the critical care, already in progress for Tom, and transfer that critical care to Betty. Betty would get Tom’s critical care bed, ventilator and services instead of Tom. The proverbial plug could be pulled on Tom, without his consent or the consent of his substitute decision-maker.

We do not here explore how exactly the doctors would compare or evaluate Tom’s and Betty’s likely chances of survival. We do note that in The January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

“What’s different now is we have to essentially guesstimate what would happen a year from now.”

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…”

Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

“… so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise…”

To be extremely fair, we emphasize that Dr. Warner was not asked to discuss the situation if the Government took the drastic step of trying to override the Health Care Consent Act. Nevertheless, his concerns, quoted above, would seem to us to apply equally to such a drastic situation.

If doctors could unilaterally pull the plug on an existing critical care patient like Tom, over their objection, no patient in an Intensive Care Unit could feel safe that they won’t be evicted at some point, to make room for someone else, before it would be medically appropriate to stop giving them critical care they need. Under the January 13, 2021 triage protocol, any patient needing critical care who would be denied critical care would still be offered medical care, but it would be something less than the life-saving care one gets in critical care.

 2. Recklessly Tap-Dancing in a Constitutional Minefield

What is the constitutional minefield that this would create? It has many layers.

If Tom, the evicted critical care patient, dies as a result, it would not be surprising for his family to consider suing the doctor, the hospital and the Ford Government for this death. We cannot and absolutely don’t here offer legal advice to anyone. However, we can foresee some of the arguments that might be made on Tom’s behalf.

To defend themselves, the doctor and hospital could be expected to point to the Government’s January 13, 2021 triage protocol and say they were following this direction. As for withdrawing critical care from Tom, a patient who is in the middle of receiving critical care, the doctor, hospital and Government could also be expected to point to any regulation or executive order that the Government might pass in an attempt to suspend the Health Care Consent Act, and say that they were following it when they took away critical care from Tom, over his objection.

We now arrive at the constitutional minefield. Here are just some of the points that Tom’s family might present. A court would have to rule on these arguments and the responses or defences that the doctor, hospital and/or Government might present. Each of these arguments, if successful, might be sufficient to knock out the defence.

  1. Tom’s family might well argue that the Government cannot give directions on who lives and who dies during critical care triage by simply sending hospitals a memo, which is all the January 13, 2021 triage protocol is. The Government would have to show that those sending the memo had the legal mandate to make such decisions and give such life-and-death directions by simply sending a memo like the January 13, 2021 triage protocol.
  1. If the Ford Government did not approve the January 13, 2021 triage protocol, Tom’s family might argue that the Government has an even more uphill argument if it wants to argue that the January 13, 2021 triage protocol was somehow authorized by law. This is because the Ford Government had told media that it did not approve the January 13, 2021 triage protocol. This is so even though it states in the document that it was approved by the Ontario Critical Care COVID Command Centre. It was the Ford Government that set up the Ontario Critical Care COVID Command Centre.
  1. If Cabinet passed a regulation or order suspending the Health Care Consent Act, Tom’s family can be expected to argue that the Ford Government’s Cabinet did not have the power to make such a regulation or executive order. To make a regulation or like order, it would be practically necessary for the Government, the doctors and/or the hospital to show that the Legislature gave Cabinet the power to pass such a regulation or order.

Tom’s family might argue that a piece of legislation, supposedly conferring this power on Cabinet, is itself unconstitutional. If so, then Cabinet cannot use it to override the Health Care Consent Act.

If that argument fails, Tom’s family could argue that the piece of legislation supposedly conferring that power on Cabinet, should be interpreted narrowly, and that so interpreted, it did not authorize the Cabinet to make the regulation or order on which the Government, doctors and hospital rely.

This can be a complicated legal issue. We do not here review the legislative options that the Government might try to rely on to authorize such a regulation or executive order. However, Tom’s family could be expected to argue that the Legislature cannot simply give Cabinet carte blanche to pass any regulation it wants on any topic it wants.

Among other things, Tom’s family could urge the Court to interprete narrowly any legislation that gives Cabinet power to make regulations and orders. They could well argue that before a court agrees that legislation gives Cabinet the power to pass a drastic relation or issue a drastic order that suspends the Health Care Consent Act or that otherwise infringes Tom’s constitutional rights guaranteed by the Charter of Rights, that legislation must make it clear that the Legislature meant to give Cabinet such a drastic power. Tom’s family can also be expected to argue that any legislation, supposedly giving Cabinet such power, should be interpreted strictly and restrictively. The Legislature should not be able to pass the buck to Cabinet on so serious a topic. The Legislature must debate issues in public, with the Opposition present and participating. In sharp contrast, the Cabinet meets in secret, with no Opposition present.

Put another way, Tom’s family could argue that when a court interpretes legislation that gives power to Cabinet to make regulations, it should be presumed that this did not include a power to infringe the constitutional rights of medical patients, guaranteed by the Canadian Charter of Rights and Freedoms, or other basic rights to consent to medical decisions about their own health care, unless the Legislature said so in the clearest of language. For example, the family might well be expected to argue that the Legislature did not intend to delegate to Cabinet the power to grant exemptions from the Health Care Consent Act, if this will involve discrimination against patients with disabilities. The AODA Alliance and the ARCH Disability Law Centre have shown how the January 13, 2021 triage protocol presents the danger of disability discrimination. All that the Government’s defenders who have spoken in public have said in its defence is to say that the January 13, 2021 triage protocol states that doctors should not discriminate based on grounds like disability. However, that protocol goes on to tell doctors to use the Clinical Frailty Scale for some patients, when deciding if they should be refused or evicted from critical care. We have shown that this Scale is replete with disability discrimination. The protocol’s earlier statement to doctors not to discriminate based on disability does not cure or reduce the Clinical frailty Scale’s disability discrimination.

As well, the January 13, 2021 triage protocol does not provide a critical care patient with any due process, such as a right of appeal, if doctors decide to refuse them critical care, or to evict a critical care patient from the Intensive Care Unit. Tom’s family could well try to argue that the Legislature should not be taken as giving Cabinet the power to suspend the Health Care Consent Act without any due process for patients, unless the Legislature said so very explicitly.

Similarly, Tom’s family can be expected to argue that a court should be very reluctant to interprete legislation as giving Cabinet the power to make a regulation or other order that endangers a medical patient’s right to life, which is spelled out in section 7 of the Charter of Rights. Tom’s family may contend that this right is at stake when talking about refusing a patient critical care they need, or unplugging them from critical care they need and are already receiving.

  1. If any of those arguments by Tom’s family succeed, then the doctors, hospital and Government could be in hot water. There is even more to this minefield, even if it were assumed that those arguments by Tom’s patient’s family might not succeed.

Tom’s family could try to argue that Cabinet’s regulation or order or the doctors or hospitals actions under them and under the January 13, 2021 triage protocol nevertheless violate tom’s constitutional rights under the Charter of Rights. They would want to argue that in Eldrige v. B.C., Canada’s leading ruling on the Charter’s guarantee of equality to people with disabilities, the Supreme Court of Canada said that a patient can invoke the Charter to challenge the delivery of health care services in a hospital (there, the failure to provide a Sign Language interpreter to a deaf emergency room patient).

For example, Tom’s family could try to argue that the treatment of Tom by the doctors, hospital and/or the Government included disability discrimination contrary to Charter s. 15 (equality without discrimination on grounds like disability) and/or it denied the patient fair procedure in the triage process as guaranteed by Charter s. 7. (The right to not be deprived of one’s life without fulfilling the principles of fundamental justice). If a court was persuaded that any of these Charter rights were violated, the Government might try to argue that Charter s. 1 saves the day for them. Section 1 of the Charter provides:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Government would have to argue that a suspension of the Health Care Consent Act was justified due to the COVID-19 emergency. However, there are many arguments that the courts will have to consider. It will not be an easy task. It is the Government that must prove that s. 1 justifies government action.

Tom’s family might argue that by February 2021, this emergency was neither sudden nor unexpected. The COVID-19 pandemic had raged for almost a year. The Government knew in February 2020 that it should prepare for the eventuality of critical care triage. Yet as the AODA Alliance website amply shows, the Government has refused to embark on a proper public debate and discussion of this issue. It has dealt with it via secret triage protocols, closed door meetings, and a protracted failure to directly consult the public (including people with disabilities).

We and others repeatedly alerted the Government to the pitfalls in its triage planning, sought a chance to deal directly with the Government, and offered constructive solutions. This is an eventuality for which the Government could have been prepared with less drastic measures, had it properly planned for it.

  1. Even if it were assumed that Tom’s family failed on each and every one of the preceding arguments, still more dangers await the Government in this constitutional minefield. Tom’s family might be expected to argue that Ontario cannot authorize a doctor or hospital to withdraw critical care from a patient who needs it and who is receiving it, over the objection of the patient or their substitute decision-maker, without running afoul of the Criminal Code’s provisions on culpable homicide. His family may choose to argue that under Canada’s Constitution, it is Canada’s Parliament, and not a provincial Legislature or Government, that decides what constitutes a criminal homicide. If unplugging a patient from a ventilator or otherwise evicting them from critical care that they need without their consent is criminal conduct in some situations, Tom’s family may argue that Ontario’s Legislature, Cabinet or Government cannot legalize it.

 3. There are Ready Solutions Open to the Ford Government

What is the solution to this minefield in which Premier Doug Ford could soon find himself dangerously tap-dancing? It includes steps like these:

  1. Stop dealing with the critical care triage issue in secret, behind closed doors. Immediately embark on a public discussion of it. Don’t continue to hide behind the Government-appointed external, advisory Bioethics Table. Stop using that group as human shields. Talk directly to those of us in society, like disability advocates, who have ideas to share. Answer our seven unanswered letters on the critical care triage topic.
  1. Take off the table the option of suspending the Health Care Consent Act and letting doctors withdraw life-saving critical care from a patient who needs it and is receiving it.
  1. Ensure that whatever the Government does in this area will be properly authorized by legislation. If legislation is needed, this should be immediately introduced into the Legislature for debate. Public hearings should be held. It should not be rammed through without a proper chance for public input.
  1. Ensure that whatever the Government does regarding triage is fully constitutional. Don’t put families in the position of having to fight the Government after the fact, and after the devastating trauma of having to lose a family member.
  1. Implement an immediate, public, aggressive strategy to reallocate enough health care workers to ensure that Ontario has enough capacity to deliver effective critical care to all who need it, even in the face of further surges in demand due to COVID-19. That could eliminate any need for triage of critical care.

The AODA Alliance is standing by and ready to help.

4. Learn More About Ontario’s Controversial Critical care Triage Issue

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.



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For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility

January 29, 2021

            SUMMARY

Ontario is on the verge of a deeply troubling anniversary of Ontario Government inaction. This Sunday, January 31, 2021 marks the two year anniversary since the Ford Government received the blistering  final report of the Independent Review of the Implementation of the Accessibility for Ontarians with Disabilities Act. This report was written by former Ontario Lieutenant Governor David Onley.

In the two years since it received this report, the Ford Government has announced no strong, comprehensive plan to implement its recommendations. Most of its recommendations have not been implemented at all. This is so even though Ontario’s Accessibility Minister, Raymond Cho said in the Legislature on April 10, 2019 that David Onley did a “marvelous job” and that Ontario is only 30 percent along the way towards the goal of becoming accessible to people with disabilities.

It is a wrenching irony that this anniversary of inaction comes right after we celebrated the 40th anniversary of Canada’s Parliament deciding to include equality for people with disabilities in the Canadian Charter of Rights and Freedoms. That momentous breakthrough took place on January 28, 1981, 40 years ago yesterday. The Accessibility for Ontarians with Disabilities Act was passed in no small part to implement that constitutional right to equality for people with disabilities.

Over the past two years, the AODA Alliance has spearheaded grassroots efforts to get the Ford Government to come forward with a strong and comprehensive plan to implement the Onley Report. We have offered many constructive recommendations. We have also offered the Government our help. On Twitter and in our AODA Alliance Updates, we have maintained an ongoing count of the number of days that had passed since the Government received the Onley Report, keeping the spotlight on this issue. As of today, it has been 729 days.

The Government has taken a few new actions on accessibility since it took office in June 2018, the most important of which are summarized below. But these have been slow, halting and inadequate.

            MORE DETAILS

 1. What the Onley Report Found About the Plight of Accessibility for Ontarians with Disabilities

In February 2018, the Ontario Government appointed David Onley to conduct a mandatory Independent Review of the AODA’s implementation and enforcement. He was mandated to recommend reforms needed to ensure that Ontario becomes accessible by 2025, the goal which the AODA requires. Based on public feedback he received, the Onley report found that the pace of change since 2005 for people with disabilities has been “glacial.” With under six years then left before 2025 (now less than four years), the Onley report found that “…the promised accessible Ontario is nowhere in sight.” Onley concluded that progress on accessibility for people with disabilities under this law has been “highly selective and barely detectable.”

David Onley also found “…this province is mostly inaccessible.” The Onley Report accurately concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley Report said damning things about years of the Ontario Government’s implementation and enforcement of the AODA. He in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

The Onley Report made concrete, practical recommendations to substantially strengthen the Government’s weak, flagging AODA implementation and enforcement. Set out below is the Onley Report’s summary of its recommendations. Many if not most of them echo the findings and recommendations that the AODA Alliance submitted in its detailed January 15, 2019 brief to the Onley Review. Among other things, David Onley called for the Government to substantially strengthen AODA enforcement, create new accessibility standards including for barriers in the built environment, strengthen the existing AODA accessibility standards, and reform the Government’s use of public money to ensure it is never used to create disability barriers.

 2. What New Has the Ford Government Done on Accessibility Since the Onley Report?

It was good, but long overdue, that when releasing the Onley report back in March 2019, the Ford Government at last lifted its inexcusable 258 day-long freeze on the important work of three Government-appointed advisory committees. These committees were mandated under the AODA to recommend what regulations should be enacted to tear down disability barriers in Ontario’s education system impeding students with disabilities, and in Ontario’s health care system obstructing patients with disabilities. The AODA Alliance led the fight for the previous nine months to get the Ford Government to lift that freeze. Because of those delays, the Government delayed progress on accessibility for people with disabilities in health care and education. We are feeling the harmful effects of those delays during the COVID-19 pandemic.

The Ford Government’s main focus of its efforts on accessibility for people with disabilities has been on educating the public on the benefits of achieving accessibility for people with disabilities. That is work that the previous Government had been doing for over a decade. That alone will not bring about significant progress.

Since releasing the Onley Report, the Ford Government has held a couple of staged ministerial events, on January 28, 2019 and on October 29, 2019 (for which an inaccessible email invitation was sent), supposedly to announce a framework to implement the Onley Report. However they announced little, if anything, new. To the contrary, they focused on re-announcing things the Government had been doing for years, including at least one measure dating back to the Bob Rae NDP Government that was in power over a quarter century ago.

The Government has announced no plans to implement any of the recommendations for reform of accessibility standards from the Transportation Standards Development Committee (which submitted its final report to the Ontario Government in the spring of 2018, almost three years ago) or the final report of the Information and Communication Standards Development Committee (which submitted its final report some ten or eleven months ago).

The Government has had in hand for at least a month, if not more, the initial report of the Health Care Standards Development Committee. It must be posted for public comment. The Government has not posted it, or announced when it will do so. In the midst of this pandemic, swift action in the area of health care accessibility is desperately needed for people with disabilities and all Ontarians.

In the meantime, the one major new strategy on disability accessibility that the Ford Government has announced in its over two and a half years in office has been an action that David Onley never recommended and has, to our knowledge, never publicly endorsed. The Government diverted 1.3 million public dollars to the seriously problematic Rick Hansen Foundation’s private building accessibility “certification” program. We have made public serious concerns about that plan. The Government never acted on those concerns. Almost two years later, there is no proof that that misuse of public money led to the removal of any barriers in an Ontario building.

Despite announcing that the Government will take an “all of Government” approach to accessibility in response to the Onley Report, we have seen the opposite take place. TVO has not fixed the serious accessibility problems with its online learning resources, much needed during distance learning in this pandemic. The Government is building a new courthouse in downtown Toronto with serious accessibility problems about which disability advocates forewarned. During the pandemic, the Government has had circulated two successive critical care triage protocols which direct hospitals to use an approach to triage that would discriminate against some patients with disabilities and has refused to directly speak to us about these concerns. Over our objection, the Government has unleashed electric scooters on Ontarians, exposing people with disabilities to dangers to their safety and accessibility. This is all amply documented on the AODA Alliance’s website.

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

Take an all-of-government approach by making accessibility the responsibility of every ministry.

Ensure that public money is never used to create or maintain accessibility barriers.

Lead by example.

Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

  1. Reduce the uncertainty surrounding basic concepts in the AODA.

Define “accessibility”.

Clarify the AODA’s relationship with the Human Rights Code.

Update the definition of “disability”.

  1. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.

Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.

Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.

Include accessibility in professional training for architects and other design fields.

  1. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.
  1. Revamp the Information and Communications standards to keep up with rapidly changing technology.
  1. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.
  1. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.
  1. Develop new comprehensive Built Environment accessibility standards through a process to:

Review and revise the 2013 Building Code amendments for new construction and major renovations

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

  1. Provide tax incentives for accessibility retrofits to buildings.
  1. Introduce financial incentives to improve accessibility in residential housing.

Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units.

Offer tax breaks to boost accessibility in new residential housing.

  1. Reform the way public sector infrastructure projects are managed by Infrastructure Ontario to promote accessibility and prevent new barriers.
  1. Enforce the AODA.

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

  1. Deliver more responsive, authoritative and comprehensive support for AODA implementation.

Issue clear, in-depth guidelines interpreting accessibility standards.

Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.

Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

  1. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.
  1. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.



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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (“the Joint Committee”) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (“The disability amendment”)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

“Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities,” said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. “However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or “triage” of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.”

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities – something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

For more background, check out:

  1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.
  1. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.
  1. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee – a decision the Federal Government reversed forty years ago today.
  1. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.

I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

  1. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.

Et en français, it est proposé

Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:

«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»

The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.

Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.

The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the

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New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.

Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will not—the intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems.

I am informed, for example …

Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.

The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.

Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.

Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.

Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.

As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.

I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to

[Page 85]

deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.

Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.

Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.

We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time.

The Joint Chairman (Mr. Joyal): Thank you very much.

Mr. Robinson to conclude.

Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.

Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words “or other authority” in which the person is involved, they would be protected in those circumstances?

Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.

You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary.

[Page 86]

So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings.

The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.

Mr. Robinson: Yes, Mr. Chairman.

Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.

I would also suggest that the words “other authority” have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.

I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.

Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read “ed or who is deaf” to make it conform technically with the page.

Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following:

ed or who is deaf has the right to the assistance of an”

I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait.

[Translation]

Senator Tremblay: Just to please my colleague who could very well read it himself.

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication.

… soit modifié par substitution, à l’article 14, de ce qui suit:

«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

Mr. McGrath, to propose the motion in the usual way?

Mr. McGrath: Thank you very much, Mr. Chairman.

I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment.

Mr. Chrétien: Yes. Yes.

Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.

However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.

It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.

Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless.

Mr. Crombie: Two good events on one motion. Two!

The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case.

An hon. Member: I am sure they heard footsteps.

The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote.

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

On Clause 15—Equality before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.

There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word “revised” on it, and the next subamendment in relation to the same main amendment is the one identified as CP—8(1), Clause 15, page 6.

So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6.

Monsieur Corbin.

  1. Corbin: Merci, monsieur le president.

Or, je propose

Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit:

«Droits à l’égalité

  1. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»

Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”

[Translation]

Thank you, Mr. Chairman.

Le coprésident (M. Joyal): Thank you, Mr. Corbin.

[Text]

I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6.

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

Mr. Epp: Just a point of order, Mr. Chairman.

I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?

The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.

Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment.

The Joint Chairman (Mr. Joyal): No, that is not the way.

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words “Every individual is equal» and substituting the following:

in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.

And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: “physical or mental disability,”; (c) adding to Clause 15(1) the following: “marital status,”; (d) adding to Clause 15(1) the following: “sexual orientation,”; (e) adding to Clause 15(1) the following: “political belief,”; (f) adding to Clause 15(1) the following: “lack of means”; and (g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal.

In French, Mr. Chairman, if you would like me to read this in French.

Il est proposé

Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:

  1. a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:

«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de

[Page 90]

toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»

  1. b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,»
  2. c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,»
  3. d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,»
  4. e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,»
  5. f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
  6. g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié.

Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».

Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party.

Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words “or age” in Clause 15(1) thereof and substituting therefor the following words:

age or mental or physical disability.

En français, il est proposé

Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»

Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment.

Now, I am not sure we can continue to take this prosperity any longer!

However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis-

[Page 91]

abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.

Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on.

Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay!

Mr. Chrétien: If I can have five minutes I will call the Prime Minister.

It is with great pleasure that I accept the amendment on behalf of the Government.

I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow.

You can have lots of beer on my health.

Thank you for your good representation.

The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.

I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.

Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.

Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.

I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.

We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted.

[Page 92]

Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.

Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.

Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.

The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.

I would invite you to restrict your remarks to the contents of the proposed amendment.



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