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

[Page 84]

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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The Ford Government’s January 13, 2021 Critical Care Triage Protocol Would Make Every Triage Doctor a Law Unto Themselves, Denying Due Process or Fair Procedure to Patients Whose Lives Are In Jeopardy


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/

The Ford Government’s January 13, 2021 Critical Care Triage Protocol Would Make Every Triage Doctor a Law Unto Themselves, Denying Due Process or Fair Procedure to Patients Whose Lives Are In Jeopardy

January 26, 2021

            SUMMARY

We are deeply concerned that under the Ford Government’s January 13, 2021 triage protocol each frontline doctor would be a law unto themselves when deciding which patients to refuse life-saving critical care. This would happen if critical care must be rationed because the COVID-19 pandemic overloads Ontario hospitals. On January 18, 2021, we made that secret protocol public and wrote the Ford Government to strongly object to it. Ontario’s NDP has called for it to be rescinded.

In this Update we focus on one powerful and very disturbing illustration of how doctors would wrongly become a law unto themselves. They would too often be able to consciously or unconsciously bring to bear their own personal and subjective preferences when deciding which patients they will deny life-saving critical care. The January 13, 2021 triage protocol which was secretly sent to Ontario hospitals gives no due process or procedural fairness to a patient who needs life-saving critical care, but whom a doctor might refuse critical care.

This protocol would only go into effect if the Government-appointed Ontario Critical Care COVID Command Centre decides that Ontario hospitals have no more room and staff to handle all the patients who need critical care. In that event, the January 13, 2021 triage protocol requires that critical care be rationed or “triaged”. Some patients needing that care will be refused it. It will be doctors who make that life and death decision, according to the January 13, 2021 triage protocol. We believe that doctors do not want to be put in that awful position, and won’t want to be a law unto themselves. However, that is where the Ford Government is now allowing them to be positioned.

Below we explain this due process issue and then set out the “paper trail” that proves beyond doubt that our concerns are fully justified. We alerted Ontario’s Health Minister Christine Elliott of these concerns within days of our getting our hands on the January 13, 2021 triage protocol, writing as follows in the AODA Alliance’s January 18, 2021 letter to the Minister:

“Under this protocol, the patient whose life is at stake is in effect treated as a passive body lying on a gurney, over whom doctors will deliberate, make decisions, and then communicate the good or bad news (offering emotional support if the news is bad). There is no opportunity for the patient or their supporters to have input into the assessment.”

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.

            MORE DETAILS

 1. The Ford Government’s Denial of Due Process to Patients At Risk of Dying Due to a Refusal of Critical Medical Care, If Triage Becomes Necessary

Here is a full explanation of this issue. What do we mean by “due process” or “procedural fairness”? When a decision is going to be made that could harm your basic rights, you should be told about it in advance. You should be told why. You should be given a chance to be heard on the question, to present information that can help you get a decision in your favour. If the decision goes against you, you should have a chance to appeal it.

This due process all helps make the decision a fair one and an accurate one. This due process is especially important when the right at stake is the very right to live. That is the right at stake for a patient needing critical care if there is to be critical care triage.

The January 13, 2021 triage protocol does not give a patient or their family any right to be heard or have input into a decision over critical care triage. It gives them no right of appeal if the doctors decide to refuse them the critical care they need. It requires the doctors to give the triaged patient the bad news and to arrange for them to get some medical care, short of the critical care they need to survive. At most, it only requires doctors to explain at least some of the triage process to the patient at risk.

Making due process even more important here, the January 13, 2021 triage protocol specifically directs doctors to use the Clinical Frailty Scale to assess some patients’ eligibility for critical care, if triage is taking place. Disability community advocates have called for that Scale not to be used, because it flagrantly discriminates based on disability. The Ontario Human Rights Commission has also called for that Scale not to be used. Yet the Ontario Government’s Bioethics Table and Ontario Critical Care COVID Command Centre have ignored that, and pressed ahead with the use of that Scale.

That Clinical Frailty Scale requires a doctor to rate whether the patient can perform a list of activities of daily living without assistance, namely 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. The Clinical Frailty Scale was not designed to be used to decide who lives and who dies during critical care triage.

Even if the Clinical Frailty Scale were not disability discriminatory, a patient, whose life can depend in part on their score, should have a chance to have a say in whether they can do those activities of daily living. They and their family will know much more about this than an emergency room doctor who has never before met them. The same might also be said for at least some other factors that a doctor decides to use when deciding whether to refuse critical care for a patient who needs it.

An appeal from a decision refusing critical care to a patient who needs it is also an important due process safeguard to help protect patients. It helps ensure that doctors, making triage decisions, are considering the right factors and are not taking into account improper factors. Without an appeal, frontline triage doctors and the administrators who oversee them have no imminent check on their decisions. A lawsuit fought out years later by the patient’s family will come too late to save a life.

The need for proper due process for a patient whose life is at stake is even more pressing, since the head of a Toronto hospital’s Intensive Care Unit, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital, has said that these triage decisions under the January 13, 2021 triage protocol will be difficult, and may well involve the doctor making guesstimates and improvising. He explained that doctors have no experience with making such decisions. He told this to the CBC’s January 23, 2021 edition of White Coat Black Art. We included Dr. Warner’s quotations in the January 25, 2021 AODA Alliance Update.

How can all this due process be done in the context of an overloaded hospital system in the middle of a raging pandemic? The Ford Government-appointed Bioethics Table asked us that very question last summer. After extensive research, we put forward practical and constructive recommendations designed for that very context fully five months ago. We set them out below.

This package of due process protections is not included in the January 13, 2021 triage protocol with the exception of a patient being told about at least some of the triage process to which they may be subjected. There has been no explanation by the Ford Government or its Ontario Critical Care COVID Command Centre (which approved the January 13, 2021 triage protocol) or by the advisory Bioethics Table of why these important due process protections have been left out.

There is no reason given for this denial of due process especially when the January 13, 2021 triage protocol lists procedural fairness as a feature that a critical care triage protocol should include. The Government and its Ontario Critical Care COVID Command Centre and Bioethics Table have held no public discussions of this due process issue. These decisions are all being made behind closed doors, by unidentified people. This is not the openness, transparency and public accountability that the Ford Government promised Ontarians. It certainly does not protect the most vulnerable, which Ontarians were promised by Premier Ford.

The January 13, 2021 triage protocol was evidently written by doctors. The Government claims that it was written by experts for experts. Yet the medical profession, which plays a vital role during this pandemic, has no training in or expertise in due process, human rights, or fundamental constitutional rights. There is something very wrong with this picture.

We here again make public the paper trail that shows this palpable failure by the Ford Government and those to whom it has delegated responsibility to handle this issue behind closed doors. We set out key parts of that paper trail below. There is no doubt more secret documentation on point in the hands of the Government and its Bioethics Table and Ontario Critical Care COVID Command Centre:

  1. Last summer, the Bioethics Table shared with the AODA Alliance and some other disability advocates an earlier revised draft of a triage protocol, one which precedes its later September 11, 2020 recommendations. We posted that draft protocol online on July 16, 2020. We know it is hard to keep all these drafts straight.

That earlier draft triage protocol included no due process for patients whatsoever. Under it, the patient and their family had no right to be heard by those deciding the patient’s fate. There was no assurance that the family can get their family doctor to chime in and add their voice to the discussion. There was no right of appeal to anyone else in the hospital.

There was no duty on the doctors or hospitals to give the patient or their family basic rights advice. This was so even though the revised draft medical triage protocol gives superficial and inadequate lip service to due process concerns, stating:

“Due process considerations (e.g., transparency about reasons for triage decisions) are especially important in this context. Hospitals should plan for how they might proactively prepare patients and families for possible outcomes of the triage process as well as how they would respond transparently and compassionately to patient or family concerns should these arise.”

Appendix E to that earlier revised draft protocol sets out a sample of what a doctor might tell a patient and their family if it has been decided to refuse them a needed ventilator due to a ventilator shortage. That seriously deficient text gave the patient and family no rights advice or other basic information of what they can do if they wish to dispute the decision and to have it reconsidered.

That earlier draft Medical triage protocol in substance wrongly and summarily rejected the idea of any appeal, stating:

“critically ill patients must be assessed rapidly in a dynamic and over-taxed environment, a formal process for patients and families to appeal triage decisions may not be feasible or appropriate (e.g., if critical care is contrary to the patient’s wishes).”

  1. During our summer virtual meetings with the Government’s Bioethics Table, we were asked to give ideas on what kinds of due process should be included in the triage protocol, that are sensitive to the time pressures during such triage. We did so in our August 30, 2020 written submission to the Bioethics Table. We set the relevant part of those submissions out below. They were posted on line last summer, and shared with the Ford Government and not just its Bioethics Table.
  1. After that, the Bioethics Table included some, but not all of our due process recommendations in its September 11, 2020 report to the Ford Government. The Government kept that report secret for three months, forcing us to vigourously advocate for its public release. We set out the relevant parts of that report below that address due process for patients.
  1. On November 13, 2020, the Government or its Ontario Critical Care COVID Command Centre sent a secret new draft triage protocol to Ontario hospitals. We have not seen it. However, we know from a later undated letter from Dr. Andrew Baker, a member of the Ontario Critical Care COVID Command Centre, to Ontario hospitals that that draft protocol included some sort of right of appeal within the health care system for triage patients who are refused critical care they need. That letter listed the following as some of the things that have been removed from the draft protocol that was earlier circulated to hospitals on November 13, 2020:

“1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee;”

  1. We have learned that the Bioethics Table later delivered a secret revised report to the Government on critical care triage on January 12, 2021. We do not know what it said about due process for patients or anything else.
  1. Next, the January 13, 2021 triage protocol was secretly sent to all hospitals by or on behalf of the Ford Government. It did not include the package of due process rights for patients facing critical care triage that we have asked for and that the Bioethics Table earlier recommended in its September 11, 2020 report, except for advising patients about at least some of the triage process that the January 13, 2021 triage protocol mandates (one in which the patient has no say). We do not know who decided to rip out further due process from the protocol, or who they consulted, or why they decided to do this.

 2. What the AODA Alliance Told the Government-Appointed External and Advisory Bioethics Table on August 30, 2020

The AODA Alliance’s August 30, 2020 written submissions to the Government’s Bioethics Table included:

The First Issue: The Revised Draft Triage Protocol is Seriously Lacking in Due Process for All Patients

  1. The Bottom Line

The critical medical triage protocol needs to be revised to provide strong, mandatory, reliable due process protections that ensure fair and accurate decisions in triage cases. This is especially important since the decision of whether a patient will be given critical care is a life and death decision. The Canadian Charter of Rights and Freedoms guarantees in section 7 the right to life, and the right not to be deprived of one’s life except in accordance with the principles of fundamental justice. Due process must be the most rigourous when the right to life is at stake.

  1. The Rule of Law and the Need for Any Triage Protocol to Be Enacted in Law

As a vital starting point, any critical care triage protocol, including the due process safeguards in it, should be enacted in a law. Such a protocol is specifically aimed at a situation where a patient could be denied critical medical care that they need, despite the fact that they need it. It is a basic aspect of the rule of law that a person’s fundamental rights, such as the right to life, cannot be taken away without the clear authority of law.

Given this issue’s importance, any critical care triage protocol and any legislation that would enact or mandate it should be carefully screened in advance of its enactment by Government’s lawyers to ensure that it is fully lawful and constitutional. The Government has known of the COVID-19 pandemic for over five months. It has had ample time to take these steps. Moreover, The Government has shown that it is prepared to act very swiftly to enact other significant emergency measures to deal with the COVID-19 pandemic. The Government should be capable of doing so in this medical critical care triage context as well.

Any law enacted in this context must fully comply with the Charter of Rights and the Ontario Human Rights Code. Among other things, the standard that it mandates for making a decision over who will be denied life-saving critical care that they medically need must be sufficiently clear and not vague.

  1. Right to Early Notice

As part of due process, a patient and their family should be given notice as early as possible in advance that they may be subjected to triage for critical care. This should include a full explanation of such things as what critical care is, what medical triage is, what the steps of the triage process include, what rights the patient has to input into the process, what appeals are available from an adverse triage decision, and whom the patient and their family could consult for assistance in this process. This rights advice and information should be readily available in a wide range of languages.

  1. Right to Disability Accommodation in the Triage Process

If a person with disabilities, either a patient or a member of their family/support people, needs an accommodation to enable them to fully participate in this due process, it is important to ensure that their accommodation needs are promptly and fully met. For example, relevant printed material should be readily available in accessible alternate formats. Electronic documents should be provided in an accessible format where needed, such as an accessible html or MS Word document. PDF does not fulfil this need. Sign Language and other communication supports should be available for those needing them to take part in this process. Patients and their families should be told as soon as possible that these accommodations and supports are available on request.

  1. Who Should Make the Triage Decision

The triage protocol assumes that this decision over who, among those who need it, should get critical care is a medical decision, and as such, it should automatically be made by physicians. However, that should not be assumed.

It can be argued instead that the decision is not a medical decision, or an exclusively medical decision, even though it relates to medical services. It is a decision over how to ration publicly funded critical medical care in circumstances where there is not enough to go around. It is a decision that should be made by those who are publicly accountable for their decision on how to allocate a scarce life-saving public service or resource.

However, if, despite this serious concern, it were decided to proceed with a medical model for this triage, the following due process is proposed. This due process is proposed without accepting that such a decision should be left at all or exclusively to physicians or other health care professionals.

The hospital team that makes the triage decision should include more than one or two doctors. The Government or Bioethics Table should present a range of options for the Government to consider adopting, listing the advantages and disadvantages of each option, on which public input can be obtained. One option to consider is a committee created by the institution comprised of doctors with expertise in relevant areas such as intensive care or palliative care, nurses, social workers, and ethicists (Sprung, Charles L, et al. “Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival.” US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

Sufficient safeguards must be in place and monitored to ensure that the persons on the triage team taking part in the triage assessment and decision have no actual or perceived conflict of interest. For example, they should have no personal relationship with the patient or with any of the other patients who are subject to a triage decision. Those making the decision should have personally met the patient, and not simply been briefed by other members of the triage team.

The members of the team taking part in the triage assessment and decision should be required to have recently completed sufficient designated training in the use of the assessment tool, in the assessment due process requirements, and in applicable human rights principles and the requirement to conduct bias-free and barrier-free assessments that do not discriminate against patients with disabilities. This should not be purely passive online training (where a participant simply reads text or watches lectures and then clicks that they did so).

  1. Right to Input Into Triage Decision

As part of the critical care triage assessment process, the patient and their family/support people should be given a full and fair opportunity to give the assessment team information on the patient as it relates to the triage assessment criteria, before any critical care triage decision is made. This should include, among other things, the opportunity to present input from others, such as the patient’s personal physician or other support people.

If a patient that is to be considered for possible critical care triage appears to have no substitute decision-maker on the scene with them, and appears to be incapable of managing their health care decisions, the hospital should immediately notify the Public Guardian and Trustee’s office so that that office can consider taking part in the medical triage process on the patient’s behalf, if needed.

  1. Right to Appeal a Denial of Needed Critical Care

If a triage decision is made to refuse critical care to a patient who needs critical care, the senior member of the triage team should tell the patient about the decision and the reasons for it, immediately or as quickly as possible. The patient and their family/support people should be given “rights advice” about the ways for the patient or their family to appeal or dispute the decision. This “rights advice” should also be quickly provided to the patient and their family in writing, written in plain language, in documents provided in an accessible format where needed.

Where a patient is denied needed critical care due to a triage decision, that decision should be re-assessed each 24 hours after this denial (Sprung, Charles L, et al. “Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival.” US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

If any Ontario emergency orders now suspend due process protections for hospital patients such as opportunities to seek appeals or reviews of refusals of treatment, any such suspension of due process should be lifted. Where a patient who needs critical care is denied it due to a triage decision, the patient and their family should have a right to a swift appeal process within the health care system, with an ultimate option of an appeal to court or an appropriate independent tribunal with the needed expertise and expeditious procedures. This appeal process must be swift due to the fact that the patient needs critical care for a life-threatening condition, and because the health care facility is under incredible work pressure due to the pandemic crisis.

The AODA Alliance has not had the time and capacity to obtain and compare a wide range of hospital appeal protocols. We propose that the appeal process should include these features:

  1. a) Information about the availability of an appeal and how to launch an appeal should be widely available and well publicized, within a hospital.
  1. b) The appeal process must be very fast.
  1. c) The appeal process should rapidly get right to the substantive critical care issues, without being distracted by extraneous considerations. This is needed to minimize the time that the process takes and the need to enable medical staff to spend their time treating patients.
  1. d) A patient or their family/support people should be able to quickly and easily launch an appeal by sending in an email, placing a phone call, or verbally advising a person in charge e.g. a charge nurse in an emergency room. Whoever receives the written or oral notification that the appeal is being launched should be required to immediately communicate it to a central hub at the hospital.
  1. e) To speed up this process, to the extent possible, virtual meetings should be used to conduct the parts of the appeal that do not require in-person contact.
  1. f) On an appeal being launched, a hospital staff person who had no involvement in the triage decision should immediately be assigned to manage the appeal process, and to be the patient/family’s/support people’s primary contact.
  1. g) Immediately upon launching an appeal, an independent person either within the hospital or on stand-by at Ontario Health should review the initial triage team’s documentation of their triage decision. If the documentation reveals any possible errors, the triage team that made the decision should be required to reconsider its decision afresh.
  1. h) If, after that review, the triage team sticks by its decision to deny critical care to the patient, a second triage team, either in the hospital or elsewhere, should be appointed to immediately perform an independent clinical care triage assessment of the patient’s case. The second triage team should have the same required qualifications and training on the triage process as did the first triage team. The second triage team should, of course, include no members from the first triage team.
  1. i) The second triage team should start the assessment from scratch, and should not be provided any of the assessment decision ratings or deliberations of the first triage team. The members of the second triage team should not communicate about this case with members of the first triage team before or while making their assessment.
  1. j) The patient should get the benefit of the most favourable assessment, as between the first and second triage teams. If, after this second team’s assessment, the patient is still denied critical care, they should have an opportunity to have a rapid appeal/review by an independent court or tribunal. New legislation or regulations may be needed to spell this out. We do not have time to specify to whom this appeal should go. One option worth considering is the Consent and Capacity Board (CCB). Another option to consider is a judge of the Superior Court of Justice. A short list of judges from that court could be designated to be on stand-by for cases coming to them, if it is decided that a judge should hear these cases.
  1. k) Whether this final appeal is to a judge or to the CCB or some other body, to expedite this process, a panel of qualified lawyer-mediators should be designated to be on standby to assist that judge or tribunal e.g. to quickly gather, organize and disclose to the parties and the appeal judge or tribunal all the relevant information from the hospital and the two triage teams that had reviewed the case. Because such appeals must happen extremely quickly, it would be important for the patient, family/support people and hospital to have that emergency assistance.
  1. l) To ensure that the playing field is level for all patients, the Government should direct that Legal Aid Ontario is required to provide free legal representation to any patient invoking this appeal process after being denied critical care. A panel of Legal Aid-funded lawyers should be available on stand-by for emergency engagement if needed.
  1. Accountability for Triage Decisions

At each stage of the medical triage process, the triage team should be required to keep detailed contemporaneous records of their entire triage process including any triage assessments. These cases should be reported weekly for review by the hospital’s senior management and ethics committee, and should be reported weekly to the Ministry of Health. These should also be made public on a weekly basis as aggregated information that does not disclose patient identities. This is all needed to ensure that hospital administration and the Government are kept up-to-date on how the clinical care triage process is operating on the front lines, so that corrective action can be quickly ordered where needed.

For proper public accountability, during any period when a critical care triage protocol is in effect, the Ministry of Health should make public, on a weekly basis, information on a province-wide, municipality and hospital-by-hospital basis, about cases where critical care has been denied due to triage decisions, such as:

  1. a) the number of cases and related medical decisions;
  1. b) key demographic data such as racialized and disability status; and
  1. c) number of decisions appealed and whether the appeal resulted in a refusal or offer of critical care.

 3. What the Government’s Bioethics Table Subsequently Recommended in Its September 11, 2020 Report to the Ford Government

The Government-appointed Bioethics Table included the following in its September 11, 2020 report to the Ford Government:

Where a patient or their substitute decision-maker disagrees with the proposed treatment plan based on the critical care triage assessment the critical care triage team should reiterate and make clear to the patient or their substitute decision-maker that an appeals process exists, and should explain the process for making an appeal. All available supports and accommodations should be made available to the patient and/or their substitute decision-maker.

Due process and procedural fairness require that patients or their substitute decision-makers have an opportunity to appeal individual critical care triage decisions in a major surge. An appeals process should therefore be implemented to hear and adjudicate appeals made by patients or their substitute decision-makers with respect to triage decisions where patients are not prioritized for/admitted to critical care or where life-sustaining measures are proposed to be withdrawn because they are no longer benefitting from critical care resources or no longer meet prioritization criteria due to continued surge in demand. Because the former scenario is more time-sensitive, separate appeals processes may be required in order to facilitate rapid hearing of appeals in these cases.

Appeals have important legal implications, and processes of appeals must be developed such that they work within the multiple contexts of Ontario’s health system. Consequently, we recommend that health system stakeholders be engaged to further develop a plan for appeals. With that said, we believe that elements of this appeals process should include the following:

  • The appeals process should be clear and easy for a lay person to trigger and conduct.
  • Patient advocates, including a rights advisor or a member of the patient’s circle of care, should be able to initiate an appeal on behalf of a patient with the patient or their substitute decision-maker’s consent.
  • The critical care triage team should explain the grounds for the critical care triage assessment decision that was made. They should also consider reassessing the patient at regular intervals.
  • Appeals should immediately be brought to a Critical Care Triage Appeals Committee that is independent of the critical care triage team and of the patient’s care.
  • Critical Care Triage Appeals Committees should be established at a regional or provincial, rather than institutional, level. A regional model is capable of enhancing consistency across hospitals, bridges capacity gaps (e.g., small vs. large hospitals), and draws from a larger pool of relevant expertise and perspectives. All Critical Care Triage Appeals Committees should be made up of at least five individuals and include the perspectives of those with expertise in critical care, fair processes, and members of the community. The inclusion of perspectives from Black and other racialized populations, Indigenous populations, and persons with disabilities should exist across all members of Critical Care Triage Appeals Committees. Three Critical Care Triage Appeals Committee members should be required for a quorum to render a decision, using a simple majority vote. The process should proceed by telephone, virtually, or in person, and the outcome should be promptly communicated verbally and in writing to whomever brought the appeal.
  • The appeals process must occur quickly enough that it does not create any delay in treatment or further harm the patient (in the case of initial triage decisions) or patients who are in the queue for scarce critical care resources currently being used by the patient who is the subject of the appeal (in the case of triage decisions involving the withdrawal of life-sustaining measures).
  • Periodically, the Critical Care Triage Appeals Committee should retrospectively evaluate whether the review process is consistent with effective, fair, and timely application of the allocation framework.

 4. What Is in the January 13, 2021 triage protocol

Note: the January 13, 2021 triage protocol includes no patient appeal from an adverse triage decision that endangers their life. The January 13, 2021 triage protocol makes one reference to due process. It states:

“An emergency standard of care should be undergirded by mechanisms of due process that minimize impairment of rights as much as possible. A clear, transparent, accountable system, applied across all patients, hospitals and regions, is the optimal way to support fair and evidence- based decisions, protect human rights and to minimize the risk of discrimination and unconscious bias negatively impacting the care of vulnerable populations (such as people with disabilities, people who are racialized and people with pre-existing health conditions). It is also the best way to minimize moral injury and burnout amongst healthcare professionals and leaders burdened with the responsibility of triage.”

In another context, the January 13, 2021 triage protocol emphasizes the importance of procedural fairness. We note that due process is another way of saying procedural fairness. The January 13, 2021 triage protocol states:

“In the context of a major surge, there may be occasions where there is little clinical evidence to guide triage decisions (i.e. to distinguish between multiple critically ill patients) on the basis of predicted short term mortality, or there are irreconcilable differences of opinion between physicians regarding a patient’s eligibility for critical care at a particular level.

In such contexts of uncertainty, triage decisions must appeal to procedural fairness.

Randomization offers a procedurally fair process of decision-making that mitigates against the potential of explicit or unconscious bias and demonstrates the value of humility when uncertainty is high. Random selection also has other advantages as a decision-making strategy in the context of an overwhelming surge of critically ill patients:”



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CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need – And Other News on The Triage Issue


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/

CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need – And Other News on The Triage Issue

January 25, 2021

            SUMMARY

The controversy keeps swirling around the Doug Ford Government’s secretive handling of the life-and-death question of who will be refused life-saving critical medical care if those services must be triaged or rationed, and the danger of disability discrimination, because the Government did not ensure sufficient hospital services for all who need them. Here are the three newest developments on this front.

  1. The Friday, January 22, 2021 edition of CBC Radio’s health program, “White Coat Black Art” was devoted to the topic of how decisions will be made over who lives and who dies if the COVID-19 pandemic leads hospitals to have to ration or triage life-saving critical medical care. In his introduction, typically written after interviews were recorded, Dr. Goldman described how hospital case loads are growing, and stated:

“Last week, hospitals in Ontario were given ICU (i.e. Intensive Care Unit) triage protocols from the Ministry of Health. A similar document was given to hospitals in Quebec earlier this month. These documents, which are backed by science, tell doctors how likely patients are to live or die, if they are admitted to the ICU.”

Yet there is ample room from our own investigations and from Dr. Goldman’s interview that followed to question how much the Ontario triage protocol is “backed by science”, as opposed to a dangerous mirage of science that disguises the palpable danger of disability discrimination. Far from objective science, this program shows that triage decisions over who lives and who dies can be potentially expected to include doctors guestimating and improvising. Doctors and medicine do not have provably objective and reliable tools for predicting whether a critical care patient is likely to live beyond the next year.

This is proven by Dr. Goldman’s first guest on his 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. Goldman asked Dr. Warner 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..”

It is very good that this program addressed this topic. However, this program’s content was utterly lacking in desperately-needed and fundamental journalistic balance. The program’s host, Dr. Brian Goldman, only interviewed doctors, but no one from the disability community who have been raising serious concerns about disability discrimination.

That flew in the face of the program’s weekly opening line, which proclaims “Welcome to White Coat Black Art, the show about medicine from all sides of the gurney.” Contrary to its stated prime directive, this edition of that program took a selective look at this important issue from only one side of the gurney, that of the doctors. We have been reaching out to Dr. Goldman for months to cover the disability discrimination concerns with Ontario’s critical care triage protocol. The need for such was even flagged for the program by one of its two guests, Dr. Warner. In the only brief reference to disability perspectives on this entire program, Dr. Warner commendably stated on his own initiative:

“…I think that disability and other advocates should definitely educate us on how this policy may not meet the needs of all patients so that it could be fair and equitable…”

CBC knows well about disability community advocacy on the triage issue. This is even more troubling given the difficulty we and the disability community have had for months in getting the media to cover this issue, which has been looming throughout the pandemic.

  1. Today, Ontario’s New Democratic Party commendably made public a letter sent by NDP Leader Andrea Horwath and NDP Disabilities Critic Joel Harden to Ontario Health Minister Christine Elliott. Set out below, that letter asks the Government to answer vital questions on this life-and-death issue which the Government has not answered to date. We thank the NDP for publicly asking these questions, and for endorsing the concerns on this issue that the AODA Alliance has been raising from the perspective of people with disabilities. We urge the Ford Government to end its protracted secrecy on this topic, and provide full and prompt answers.
  1. The January 23, 2021 edition of the National Post included an extensive article on this issue, also below. It quoted AODA Alliance Chair David Lepofsky on some of our many concerns with the Government’s January 13, 2021 triage protocol.

We spelled those concerns out in the AODA Alliance’s January 18, 2021 letter to Health Minister Christine Elliott within days of receiving a leaked copy of that previously secret critical care triage protocol.

There have now been 725 days, or over 23 months, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes still worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past eleven months.

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, 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.

            MORE DETAILS

 January 22, 2021 Letter to Ontario Health Minister from Ontario New Democratic Party

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

January 22, 2021

Dear Minister Elliott,

We are writing to you regarding the critical care triage protocol for Ontario hospitals in case of a major COVID-19 surge. With the latest modelling showing that ICUs may be full by early February, the prospect that doctors will have to make life and death decisions about who receives critical care and who doesn’t is not just hypothetical, it could become a reality.

On January 18, we obtained and made public a document dated January 13 written by the COVID-19 Critical Care Command Centre and issued to hospitals. It provides guidance on how hospitals should triage ICU patients in the awful event that emergency rooms are overwhelmed by COVID cases.

Disability rights organizations, including the AODA Alliance, have raised important concerns with the document. Firstly, that it was drafted in secret without the government consulting directly with disability organizations. Second, that it opens the door to discrimination on the basis of disability in the allocation of life-saving care. Finally, it does not offer patients a right of appeal outside the healthcare system, either to an independent tribunal or a court.

Instead of addressing these substantive concerns, we were puzzled by a Ministry of Health spokesperson distancing your government from the document altogether. The Ministry maintains that it is not a triage protocol, despite the fact that it lays out how hospitals should triage critical care patients. Your spokesperson also claimed that the document was “not approved or endorsed by the Ministry of Health”, even though it was authored by the Critical Care Command Centre your government created.

To this end, we would like you to answer the following questions: Your government says it has not approved the January 13 triage protocol, but it is in doctors’ hands right now. Will you rein in any bodies claiming to instruct hospitals on triage, and revoke the January 13 protocol?

The National Post has reported that the government’s Bioethics Table recommended temporarily suspending the law which requires patient or family consent before life-sustaining treatment is withdrawn from a critical care patient. Is your government considering this and if so, will you immediately publicize any regulations or legislation under consideration for public discussion about this life and death matter?

The Premier promised “complete transparency” at the start of this pandemic but Minster, your government’s approach to clinical triage has been anything but transparent. The public has a right to know what hospitals are being told to do in the event of a major COVID surge, who is telling them to do so, and to be consulted so that any protocol respects the human rights of all Ontarians, particularly those with disabilities.

We look forward to your response.

Sincerely,

Andrea Horwath                                                                                Joel Harden

Leader of the Official Opposition                                                      MPP, Ottawa Centre

 National Post January 23, 2021

A plan of last resort: Choosing who lives and dies if ICUs are overrun; Random selection

Graphic: Nathan Denette, The Canadian Press / If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

It’s not quite drawing names from a hat.

But if COVID-19 pushes hospitals to crisis levels, Ontario hospitals have been instructed that, when faced with tiebreaking situations – one empty bed in the ICU, and two, four or more critically sick people with more or less equal chances of surviving competing for it – random selection should be applied.

Each person would be assigned a number. The administrator on call would enter the numbers in a random number generator like random.org, and then click the “generate” button.

“Randomization is efficient when decisions need to be made rapidly,” reads a critical care rationing plan prepared for Ontario hospitals designed to help doctors decide who should get access to beds, intensive care or ventilators in the event of a catastrophic COVID-19 surge. Randomization avoids power struggles between doctors, the document continues. It eliminates explicit or unconscious bias and, critically, reduces the moral and psychological burden of deciding whom, ultimately, wins the bed. Who gets a chance at living.

It may sound dystopian and dehumanized. But far worse than a random number generator would be a human being having to choose, said Dr. Judy Illes, a professor of neurology at the University of British Columbia. “Because the people who have to administer those decisions are hugely at risk for moral distress and trauma.”

Doctors in Canada have never faced critical care rationing. There is no historical precedent. If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

And while thousands of people aren’t getting the timely care they need – knee surgeries, hip replacements, the start of new experimental drug regimes, because of backlogs when hospitals shut down to all but urgent care – most people in Canada have never had to worry about getting rationed for life-saving care.

Critical care triage protocols, like those now being distributed to Ontario and Quebec hospitals, are formed from lessons learned in battle fields and natural disasters. “But it will be no less heart-wrenching in this situation, and maybe even more so,” because the decisions will be taken in urban hospitals, Illes said, not in fields with grenades going off.

“It’s not a question of will the public cooperate? The public will have no choice,” said Illes, who warns that our autonomy will be eroded if we don’t take better control of the situation.

Nothing is fair about COVID-19, Illes and UBC political science professor Max Cameron wrote in April, and now, nine months out, aggressive mutations are spreading. Hospitalizations and deaths are increasing. An average of 878 people were being treated in ICUs each day during the past seven days. Healthcare workers are frightened, anxious, exhausted. Social distancing is slipping, Peter Loewen reported this week in Public Policy Forum; and most Canadians won’t be vaccinated until the end of September. Ten months into the pandemic, “and there are 10 months to go,” wrote Loewen, a political science professor at the University of Toronto. “This is halftime.”

Meanwhile, Ontario surpassed 250,000 confirmed infections, Quebec a breath away from the same grim mark, and while Quebec’s health ministry told the National Post Friday the province is still a long way from triggering its ICU prioritization protocol, doctors are nervously looking at the U.K, where a new variant is turning some hospitals into “war zones.”

“We want to avoid being patients,” Illes said. “We want to exercise our autonomy to help everyone get through this viral war that we’re in and that we’re not winning right now.”

If people don’t double down on distancing and masking and other precautions, choice will no longer be relevant, she said. “Procedures will take over; protocols will supersede choice. And the focus will be on this public-centred approach, maximizing the most good for the most number of people.”

The Ontario ICU triage protocol, used as a model for triage protocols adopted in Quebec, prioritizes those with the greatest likelihood of survival. (It applies to adults only, not children). People who have a high likelihood of dying within 12 months of the onset of their critical illness would be assigned lower priority for critical care. Doctors would score each person on a “short-term mortality risk assessment,” and across a whole range of different conditions – cancer, heart failure, organ failure, trauma, stroke or severe COVID-19 – ideally before they are intubated, connected to a ventilator. It aims to reduce “preventable deaths to the degree possible” under major surge conditions, with the “least infringement of human rights.” Consultant doctors would be available 24/7 to provide a timely (within the hour) estimate of a person’s survival, “recognizing that such estimates may not be perfect,” but likely more accurate than non-expert judgment. In the final “summary and care plan,” one of two boxes would be checked: the patient will, or will not be offered critical care. Those who don’t meet “prioritization criteria” won’t be abandoned. They’ll receive appropriate medical therapy and/or comfort care.

Most controversially is what is not included in the current plan – a recommendation before the Ontario government that life-support be withdrawn from people already in the ICU whose chances of survival are low, if someone with better prospects is waiting behind them.

The Post reported this week that Ontario Premier Doug Ford’s government is being asked by its external advisory COVID-19 Bioethics Table to pass an “executive order” that would permit doctors, without the consent of patients or families, to remove breathing tubes, switch off ventilators and withdraw other life-saving care from people who are deteriorating, and where further treatment seems futile, so that someone who otherwise might live can take their place.

Withdrawing treatment from someone who hasn’t consented to it could be argued to be culpable homicide, said disability rights advocate David Lepofsky. “There are huge legal questions here, and they need to be discussed in the open, because we’re talking about possibly taking an active action that could accelerate someone’s death,” he said.

“The government can’t decide on who lives and who dies by a memo, written in secret, with no debate in the legislature.”

Under normal conditions, withdrawing treatment without consent would be an “illegitimate choice,” Annette Dufner, of the University of Bonn, wrote in the journal Bioethics. Even in a pandemic, doctors might risk legal charges.

“At the same time, it is by no mean obvious that patients already under treatment in a setting of scarcity have the same moral claim on the respective medical resources they would normally have,” Dufner wrote. When scarce, “the use of resources can, after all, come at the cost of other patients’ lives.”

Any suspension of the consent act would be temporary, said Dr. James Downar, a member of Ontario’s Bioethics Table “And, to be super clear: if there are enough resources for everybody, this never happens.”

Outside the horror of having to choose, even the practicalities of deciding who gets an ICU bed and who should be “discharged” – the dispassionate euphemism for stopping intensive care – “these kinds of equitable, distributive justice kinds of decisions are very, very complicated,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

And how will patients, and families, be told that, “by virtue of this decree” you will, or will not, receive life-saving care? “I don’t know how it’s going to be done,” Goldberg said. “No one has ever done this.”

“Families will presumably have heard about this, from the press. But they may not. They may think this is science fiction. They may go to the courts, and I don’t know what the courts are even going to say in this case.”

Goldberg has never had to take community needs, values or resources into consideration when caring for the critically ill. “Never. Zero. When I have discussions with patients and families, my perspective is always deontological,” what’s best for the person lying in that hospital bed. That “duty to the patient” is now being supplanted by a utilitarian view that says we need to rescue the most lives, he said.

“I understand it, intellectually. But from a physician point of view that I was taught all these years, and from my own personal perspective, it’s just anathema.”

He takes comfort that admissions to his hospitals are coming down. He’s hoping it’s a trend. “The kids went back to school in Quebec yesterday, the high schoolers. The epidemiologists are telling us we may see a blip in 10 days or two weeks if schools really are a reservoir.”

“We’re waiting. We’re not putting our cards away. But we can’t get far enough away from this.”

Triage protocols, medically-guided protocols that are blind to disability, socio-economic status, cultural origin, are the only way to manage and mitigate the moral distress facing the people who will have to enact them, Illes said. “At the end of the day, it is physicians on the front line in the ICU with blood flowing on the floor who will bear the burden of decision-making.”

“How do we protect families from moral distress? I don’t know. No protocol is going to help anyone to understand that the people who cared for their loved person weren’t able to take the last-mile possible saving procedure,” she said.

“Let’s try to avoid ever going there.”

National Post

Sharon Kirkey



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Even More Reason to Worry About Secret Ontario Plans Regarding Rationing or Triage of Life-Saving Critical Medical Care Is Revealed in Two Newspaper Articles and a Letter Secretly Sent to Ontario Hospitals


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/

Even More Reason to Worry About Secret Ontario Plans Regarding Rationing or Triage of Life-Saving Critical Medical Care Is Revealed in Two Newspaper Articles and a Letter Secretly Sent to Ontario Hospitals

January 22, 2021

            SUMMARY

We today share more media coverage on the Ford Government’s frightening plans for deciding who will be refused life-saving critical medical care they need, if the out-of-control COVID-19 pandemic forces the rationing or triage of critical care. More revelations give rise to more serious dangers facing Ontarians with disabilities and others if that eventuality arises – an eventuality that a key Government medical advisor Dr. James Downar described as being “close”, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

We here set out two disturbing new news reports on this issue, and a letter addressed to Ontario hospitals by a member of the Ford Government’s Ontario Critical Care COVID Command Centre, Dr. Andrew Baker. Below you will find:

  1. A January 21, 2021 article in the National Post, which quotes AODA Alliance concerns, among others.
  1. A January 20, 2021 article in the Globe and Mail and, which also quotes AODA Alliance concerns, among others.
  1. An undated letter from Dr. Andrew Baker to Ontario hospitals, giving directions regarding the administration of critical care triage if it becomes necessary.

Before we set out those items below, we first explain the serious new concerns revealed here. These supplement our amply-documented major concerns with the Government’s plans and secretive planning that we have been making public over the past days, weeks and months.

For more background on this issue, check out the following:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, 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 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

More Terrifying News Hidden Behind a Fog of Unjustified Ford Government Secrecy

According to the January 21, 2021 National Post report set out below, the Ford Government’s external advisory Bioethics Table has recommended to the Health Ministry that the Ford Government pass an “executive order” that permits doctors to cut off life-saving critical care they have already started to administer to a patient, and which the patient needs, if critical care has to be rationed or triaged. By this, doctors would not just be told they can decide which patients in a line-up outside the intensive care ward will be allowed in, if there are too few beds for all patients in the lineup. More drastically, the doctors would also have the power to evict some patients from the intensive care unit, who were previously admitted, and give their beds and ventilators over to a patient or patients who are outside the unit, and waiting in the lineup to get in.

It is not clear to us that the Ontario Government can authorize this at all, much less by acting in secret to pass an “executive order”. On the January 13, 2021 edition of The Agenda with Steve Paikin, AODA Alliance Chair David Lepofsky raised the serious concern that for a doctor to do this could raise possible issues under the Criminal Code. We earlier raised a concern about this in the AODA Alliance’s December 17, 2020 letter to the Minister of Health Christine Elliott and in our December 21, 2020 news release. As with all our other letters to the Government on this issue, that letter has never been answered. No Ministry of Health officials ever discussed this with us.

Still worse, we are entirely unsatisfied that any such “executive order” (an American legal term) would be constitutional under the Charter of Rights and would be permissible under the Ontario Human Rights Code, especially in light of the serious disability discrimination at the core of the Ontario Critical Care COVID Command Centre’s January 13, 2021 triage protocol (addressed in detail in our unanswered January 18, 2021 letter to the Minister of Health). This shows with even greater clarity why it is wrong for the Government to leave the planning and execution of directions on this issue solely to physicians and bioethicist, who have no expertise in these important legal issues. The Ford Government should be leading a public debate on its plans, rather than cloaking it in secrecy and claiming it is all left to experts (i.e. doctors) talking to other experts (also referring to doctors). We doubt that the medical profession wishes to have the Government slough this all off on them.

This gives us serious grounds to fear that the Government may try to continue to hide from any public discussion of this issue until the last minute. It may be thinking about then secretly rushing through some sort of “executive order” or regulation behind close doors at the last minute, if it becomes necessary due to hospital overloads. We strongly urge that the Government not take such an approach. The consequences for Ontarians including Ontarians with disabilities are literally life-and-death. This requires any Government action to now be discussed and debated publicly.

Amidst this frightening news, it is noteworthy that the Bioethics Table’s September 11, 2020 report to the Ford Government said that doctors involved in triage decisions should be protected from liability. The opposite is the case. Anyone making such a life-and-death decision should not be immunized from responsibility and accountability for their conduct. No one is above the law.

Compounding this bad news is the erroneous claim in the January 20, 2021 Globe and Mail article, below, by Dr. James Downar, that says in substance that the Ontario triage protocol does not discriminate against patients with disabilities. The article, which describes Dr. Downar as the one who drafted the Ontario protocol, includes:

“Dr. Downar said the protocols “will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.””

The AODA Alliance, the ARCH Disability Law Centre and other disability advocates and experts last summer amply showed the Government-appointed Bioethics Table (of which Dr. Downar is a prominent member) that it would seriously discriminate against patients with disabilities for doctors to in any way use the “Clinical Frailty Scale’ when assessing any patient for possibly being triaged out of critical care services. Under the Clinical Frailty Scale as mandated in the January 13, 2021 triage protocol, in the case of a critical care patient age at least 65 with a progressive disease but who has more than six months to live, their likely mortality would be assessed in part by the number of activities of daily living that they can perform without assistance, having regard to each of these specific activities: 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. The CFS is a clear illustration on its face of direct disability discrimination.

You can read what the AODA Alliance said in great detail on this in its August 30, 2020 written submission to the Bioethics Table. You can watch AODA Alliance Chair David Lepofsky explaining this to the Bioethics Table in his August 31, 2020 concluding presentation to that Table, which is available online as a captioned video. You can also read how the ARCH Disability Law Centre documented this disability discrimination in ARCH’s September 1, 2020 written submission to the bioethics Table.

Yet despite all of this advice, the Bioethics Table recommended use of the disability discriminatory Clinical Frailty Scale in some triage decisions. The January 13, 2021 triage protocol directs doctors to use it in some triage decisions. The fact that the January 13, 2021 triage protocol generally professes the need to respect the human rights of people with disabilities among others does not reduce that discrimination one iota.

It is clear from these two newspaper articles and from the January 13, 2021 edition of Agenda with Steve Paikin that Dr. Downar is now serving in effect as the key public defender if not its spokesperson of the Ford Government on this issue. It is important for the Government to make clear who is making decisions on this issue. We wrote and tweeted to Dr. Downar over a week ago to ask what involvement, if any, he has in the Ontario Critical Care COVID Command Centre.

He has not answered. We emphasized that our concern is not with any one doctor. We are concerned that the Ford Government open up and make public its secret internal actions and deliberations on this triage issue. We all have the right to know what is being planned, and who is doing all the planning and decision-making.

Finally, we are deeply troubled by the secret letter to Ontario hospitals from the Ontario Critical Care COVID Command Centre’s Dr. Andrew Baker, set out below. It shows that the Ford Government had sent an earlier secret draft critical care triage protocol to Ontario hospitals back on November 13, 2020. We were never shown that document. It was sent a mere 8 days after the Ford Government stated in the Legislature during Question Period on November 5, 2020 that it thought it unlikely that such a document would have to be sent to health professionals.

It is also clear from the letter below that the November secret 13, 2020 triage document had recommended that the triage protocol include some due process appeal opportunities for a patient who is to be denied life-saving critical care. We now know that that has subsequently been harmfully ripped right out of the January 13, 2021 triage protocol, to the serious detriment of patients fighting for their lives.

As we stated in the January 21, 2021 AODA Alliance Update, the Government is claiming that it has not approved any of these triage plans. If so, why is Dr. Baker or any other doctor or committee sending such instructions or directions to hospitals? Who is taking responsibility for this life-and-death issue?

The National Post January 21, 2021

Originally posted at https://nationalpost.com/news/canada/ontario-wrestles-with-who-gets-icu-treatment-in-event-hospitals-overwhelmed-with-covid-patients

Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals

Ontario is being asked to temporarily suspend the law requiring doctors get patient or family consent before withdrawing treatment from people facing a grim prognosis

Author of the article: Sharon Kirkey

The COVID-19 vaccine has started to be administered in Canada, but Ontario, Quebec and other provinces still need to prepare protocols to determine who should get critical care — and who should be left behind — in the event that hospitals become flooded with COVID patients. PHOTO BY CARLOS OSORIO/POOL/AFP VIA GETTY IMAGES

Canada’s Supreme Court ruled in 2013 that a major Toronto Hospital could not withdraw life-support from a minimally conscious and severely brain-damaged man without his family’s consent.

Now, in another sign of these extraordinary times, the Ontario government is being asked to temporarily suspend the law requiring doctors get consent of patients or families before withdrawing a ventilator or other life-sustaining treatment from people facing a grim prognosis, should COVID-19 crush hospitals.

The recommendation for an Executive Order to suspend the province’s Health Care Consent Act for withdrawal of treatment in the ICU, should the situation become so dire, comes as Ontario, Quebec and other provinces prepare protocols to determine who should get critical care — and who should be left behind — if hospitals are flooded with COVID patients.

The request, deeply disturbing to disability advocacy groups, comes from Ontario’s COVID-19 Bioethics Table, which is recommending that the province ensure “liability protection for all those who would be involved in implementing the Proposed Framework … including an Emergency Order related to any aspect requiring a deviation for the Health Care Consent Act.” The act requires doctors obtain agreement from patients, or their substitute decision makers, with disputes resolved by the Consent and Capacity Board, an independent tribunal.

This week, the Ontario Critical Care Covid Command Centre issued an “emergency standard of care” to prepare hospitals for the worst-case scenario, an Italy-like surge in demand for critical care. The over-arching objective, the document states, is to “save the most lives in the most ethical manner possible.”

A critical care triage should be considered an option of last resort, invoked only after all reasonable attempts have been made to move people to other hospitals where there is space and staff to care for them, and only for as long as the surge lasts, the document says.

The goal is to minimize deaths, minimize the risk of discrimination and “unconscious bias” against people with disabilities, racialized communities and other vulnerable groups, and minimize “moral injury and burnout” among staff forced to decide who may live and who may die.

According to the document, prepared on behalf of Ontario’s critical care COVID command centre, priority should be given to people with the greatest likelihood of surviving whatever it is that brought them to hospital — COVID-19, heart attack, liver disease, a bleed in the brain or other life-threatening illness. Those with a high likelihood of dying within 12 months from that critical sickness would receive lower priority for an ICU bed.

“It’s really important to be clear here — this is not about how long you’re likely to live, it’s not a life span question,” said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. “It’s your probability of being alive 12 months after developing critical illness.”

The protocol is meant to be applied to new patients, or people already in hospital whose condition is worsening. “We’re suggesting, out of a principle of fairness, the same approach should apply to people inside the ICU,” Downar said. “It would be unfair to treat people differently depending on the timing that they presented.”

“Nobody likes the idea of ever withdrawing life-support on somebody without their permission, without their consent,” Downar said. “But in a triage scenario, we’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole, and trying to maximize the number of people who will survive an overwhelming surge.”

Dr. James Downar: “We’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole.” PHOTO BY OTTAWA HOSPITAL RESEARCH INSTITUTE VIA CP

The document now being circulated to Ontario hospitals doesn’t include a provision for withdrawal of potentially life-sustaining treatment without consent. Instead, it says that ICU doctors should regularly reassess people admitted to ICU, and consider withdrawal of life support “through a shared decision-making process with SDMs (substitute decision-makers) if a patient does not appear to be improving.”

But Downar and other doctors said it’s not possible to operate a triage model in which all decisions are made with the consent and permission of people involved, because many people would simply opt out.

“We are going to say, ‘by the way, we are taking your family member off the ventilator in lieu of another patient who we feel has a better prognosis, given this pandemic condition. Do you agree?’ I think that if we did that we would not get consent. Nobody is going to give us consent,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

The Bioethics Table’s request is now before the Ontario Health Ministry. “We are hopeful that, as part of the state of emergency, should we need it, that there will be an executive order allowing us to withdraw,” Downar said

With an Executive Order in place, doctors could put off escalating triage and continue to offer intensive care to every person who might benefit, including borderline cases — “right up to the point that the critical care beds are literally full,” he said. ICUs could run at full capacity. Only then, as new patients come in who meet the triage criteria — a lower risk of death — and who need beds would ICU care slowly start to be withdrawn from people who aren’t responding and are least likely to, Downar said.

Without the Executive Order, triage would have to be started sooner, in order to reserve beds for people with a high likelihood of survival. Fewer people would be offered intensive care, and more people would die, Downar said.

“It’s difficult to imagine how troubling that would be, that we would actually have to suspend the consent act,” said Dr. Andrea Frolic, director of the Program for Ethics and Care Ecologies at Hamilton Health Sciences and a consultant to Ontario’s COVID critical care command centre.

“It would be a rare circumstance that we would have to resort to implementing a care plan that would not have the consent of the patient or substitute decision-maker,” Frolic said.

It’s not a life span question. It’s your probability of being alive 12 months after developing critical illness

But should hospitals become maxed out, with a massive surge of people coming through the doors who have a very high chance of survival, and people in the ICU who aren’t benefitting from critical care and who are highly likely to die — “if we don’t have the tool to provide equitable access to care, that will create a lot of distress on the system,” Frolic said.

It becomes a first-come, first-served system, she said — a car crash victim who needs surgery and a short ICU stay to save his life can’t get into the ICU, because he arrived after a person with end-stage cancer and COVID-related pneumonia who may not be likely to survive their critical illness, or weeks later. “That is a situation of inequity caused by fate, really, or chance. One person happened to get critically ill before another person.”

Withdrawing treatment without consent would be very rare, happen only after every effort to reach consensus with the patient and family has been exhausted, and only as a last resort, Frolic added.

Families who feel strongly could use all avenues of advocacy, she said. “The hope is that families will see what’s happening around them. You can imagine if we get to this level of surge, there are patients in hallways; there are patients in gymnasiums. My hope is that families will see their own patient deteriorating but will see the context that we’re in a public health emergency, that it’s not personal, it’s not what we wish to do, it’s a situation caused by the pandemic.”

Mariam Shanouda, a lawyer at ARCH Disability Law Centre in Toronto, said she was “flabbergasted” when told by the National Post about the prospect of an order to allow doctors to operate outside the consent act.

“This is literally life and death and to not only give doctors that power to operate outside (the act) but to insulate them from any liability whatsoever, that is not something to be taken likely,” Shanouda said.

“We don’t know the process by which these decisions will be made, who will be making the decisions to withdraw care. Is there going to be an appeal procedure whereby a family can challenge that decision? Is there going to be accountability?”

“There are huge legal questions here and they need to be discussed in the open because we are talking about possibly taking an active action that could accelerate someone’s death,” said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance (AODA).

“If they were to amend the consent legislation, and if that were valid, and if it were constitutional and if it got around all the criminal law problems, what will that mean? It means if anybody goes to hospital and gets intensive care, they don’t have any confidence they’re going to be able to stay there,” Lepofsky said.

“They’ve got to lie there knowing not only are they fighting for their life, but they are also aware that, at any time, a doctor could decide their chances aren’t so good, somebody coming in has got better chances, ‘sorry, we’re pulling the plug on you.’”

Globe and Mail January 20, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-how-doctors-in-quebec-ontario-will-decide-who-gets-care-if-coronavirus/

How doctors in Quebec, Ontario will decide who gets care if coronavirus hospitalizations continue to surge

LES PERREAUX

If the pandemic gets much worse in Canada’s hardest-hit provinces, grading systems developed by doctors and approved by provinces will help physicians decide who gets potential lifesaving treatment and who does not.

The purpose of the grading systems, filled with scores, scales and categories, is to establish a ranking of patients in need of critical care – including COVID-19 patients – with the aim of determining who will get access to increasingly scarce critical care beds, ventilators and ICU staff. The pandemic critical care triage protocol scores patients on severity of injury or illness, likelihood of immediate survival, and one-year prognosis beyond the intensive care unit.

Another objective, to limit bias and to depersonalize who will receive care, is spelled out at the top of each of the nine pages of the Quebec version of the Intensive Care Access Form. “Do not write the name,” it says.

“Our usual way to work is we treat the patient in front of us, one person at a time. This says we have to start thinking about what’s best for the largest number of people,” said Dr. Paul Warshawsky, chief of critical care at Montreal’s Jewish General Hospital. “It’s to help us select patients in a way that is fair and equitable, not based on how loudly a family is advocating.” Across the country, medical systems are already triaging tens of thousands of patients who need scheduled surgeries but must wait as COVID-19 taxes resources.

Intensive care triage is the next major step for hospital life-and-death decisions.

Critical care triage protocols are circulating in several provinces, including hard-hit Ontario and Alberta. Only Quebec has so far made its final triage form public, along with a 48-page explainer.

Ontario’s full, official protocol, similar to Quebec’s, is expected to be publicly released soon, according to Dr. James Downar, a specialist in critical care at The Ottawa Hospital who drafted Ontario’s protocol. It is not clear if Alberta will make its protocol public.

No Canadian medical system has had to invoke formal critical care triage during the pandemic. New York hospitals invoked “crisis standards of care” in the first wave, but doctors complained the triage guidelines were more theoretical than practical. They often ended up improvising who received care. Los Angeles County put protocols in place this month but has yet to formally start triage.

“If you run out of resources, you have three options: First-come first-serve, which is deeply unfair and brings a lot of extra mortality. A pure lottery random system has lower risk of inequity, but would lead to a lot of preventable death,” Dr. Downar said. “They’re not morally defensible.”

“You are left with option three: Try your very best to come up with criteria that can be applied consistently and explicitly, based on evidence. Avoid criterion that would assign value to a human being, but just assign probability they would live.”

If the protocol is invoked, doctors in Quebec would fill out the ICU access form for every patient in critical care or waiting for it. A team of two doctors and an ethicist for each hospital would receive them, rank patients and make the final calls.

The Quebec form would decide who gets into ICU but also who could be removed from ventilators if patients with a higher probability of survival need them.

It is not clear if Ontario’s final protocol will contain this piece.

In Quebec, the intensive care protocol is supposed to kick in once the province reaches 200 per cent of normal ICU capacity. Most ICUs in Quebec are not full, but some in Montreal are above 100 per cent. Critical patients in Toronto are being moved to hospitals across Southern Ontario.

“It’s scary, we’re not at the doorstep of the protocol but we’re near it,” Dr. Warshawsky said. The Jewish General ICU is “currently running at 130 per cent. I’m not sure we can get to 200 per cent.” Intensive care has two main functions when dealing with an influx of COVID-19 patients. One is constant monitoring – each nurse is in charge of no more than two patients in Quebec. The other is breathing assistance, where ventilators pump oxygen into a patient’s lungs.

Most intensive care triage plans set out three crisis stages. At the first stage, patients with only a 20 per cent chance or less of survival within a year would be denied intensive care. Two other stages with survival rates of 50 per cent and 70 per cent, respectively, kick in if the situation deteriorates.

Then, patients are sorted. In the Quebec form, physicians complete a trauma- and injury-severity score if the patient needs care for a major accident. With cardiac arrest, organ failure and metastatic cancer patients, a number of indicators are used for the first two stages. At stage three, the existence of these afflictions alone would prevent treatment in the ICU.

Patients over 60 years old with burns over 40 per cent or more of their bodies would be denied any ICU care.

The form’s final pages rank conditions that make recovery from assisted breathing less likely, such as dementia and frailty, raising alarm among disability advocates. Weight and muscle loss, diminished ability to walk are among clinical frailty symptoms.

“The tools they use conflate disability with frailty,” said Mariam Shanouda, a lawyer with the Toronto’s ARCH legal clinic, who represents people with disabilities. “We already know there are demographic sectors more affected by COVID-19. Black people, other racialized minorities, Indigenous people, people with disabilities … they will inevitably be most affected by this protocol and they have not been sufficiently consulted.”

The Quebec protocol was reviewed by committees involving dozens of medical professionals, lawyers and ethicists, but a handful of patients. “I don’t know why this wasn’t examined prior to the pandemic as part of pandemic preparedness,” said Vardit Ravitsky, a professor of bioethics at the University of Montreal.

“Public consultation on something involving life-and-death decisions like this should be as inclusive as possible.”

Judging frailty or dementia could discriminate against both the elderly and disabled, said David Lepofsky, chairman of advocacy group Accessibility for Ontarians with Disabilities Act Alliance. He warned the protocol will turn triage doctors “into a law unto themselves.”

Mr. Lepofsky, an adjunct professor at the University of Toronto’s law school, has written to Ontario Health Minister Christine Elliott to demand the protocol be scrapped and a process launched for a full debate and legislation. “They have had 11 months to figure this out,” Mr. Lepofsky said. “And they haven’t.”

Dr. Downar said the protocols “will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.”

Dr. Downar added doctors and nurses left with “impromptu triage practices” would create far greater risk of bias. But, he acknowledged, “even a system that controls subjectivity and implicit bias and is purely focused on mortality risk will still affect some groups more than others. Mortality risk is not evenly distributed in society.”

The final page of Quebec’s protocol outlines criteria for resolving ties, putting a priority on younger people and workers in the health care system, elements not part of Ontario’s draft protocol.

In both Ontario and Quebec, if all else is equal, random chance will be used for the final selection of critical care patients.

With a report from Jeff Gray in Toronto.

Undated Letter from A Member of the Ontario Government’s Critical Care COVID Command Centre to Ontario Hospitals

Ontario Critical Care COVID19 Command Centre_ Readiness for Emergency Standard of Care for Critical Care communication January 13 2021.pdf

Dear Colleagues:

Please find attached documents that describe how to implement an emergency standard of care for admission to critical care.

This emergency standard of care does not apply now. This will require a clear, distinct, and specific time of initiation and discontinuation by the Ontario Critical Care COVID19 Command Centre.

Matt Anderson, in his recent memo Further Actions for Optimizing Care, indicated that, “All hospitals are asked to review and standardize their critical care admission criteria in consultation with the Ontario Critical Care COVID-19 Command Centre”. The emergency standard of care (attached) is intended to support this action. It operates within the Health Care Consent Act of Ontario; it does not involve the protocol-driven withdrawal of invasive physiologic support, but does involve the protocol-driven decisions to not offer admission to critical care.

It would be advisable for physicians and your hospital to prepare now to operationalize this emergency standard for when it is initiated. While the forms are included in the document, they are attached here as separate pdfs for ease of printing. Furthermore, here is a site that contains these documents as well as a narrated slide deck for use with knowledge translation. This site can be referenced for updates to these documents and supplementary resources to support implementation.

Along with developing readiness for this change, I recommend concurrently refreshing a commitment to consistent and proactive approaches to goals of care conversations with patients. Some of the tools within this document may be useful in this regard.

Please note that on November 13, 2020, I sent a draft Protocol which does involve protocol-driven withdrawal of invasive physiologic support. This emergency standard of care document supersedes that draft protocol. The substantive differences between this document and the November 13, 2020 draft Protocol are:

  1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee; 3. No protocol-driven withdrawal of invasive physiologic support, which would require an executive order from Cabinet to operate outside of the Health Care Consent Act.

However, an updated version of the Protocol may be sent in the near future. Readiness of physicians and hospitals for an updated Protocol will be expedited by preparing to implement this emergency standard of care. The same principles and tools apply to both this Emergency Standard of Care and the forthcoming Protocol. Both approaches benefit from being derived from a Framework developed by the Ontario COVID-19 Bioethics Table. Both approaches emphasize a commitment to human rights, ethical principles, continuous improvement, and fair processes. A system of data collection about the application of this emergency standard of care is being created for the purpose of monitoring and revision of this approach. Information about how to transmit data to this system will be forthcoming soon.

Thank you so much for all you are doing,

Andrew Baker Incident Commander Ontario Critical Care COVID19 Command Centre



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Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for a Lively Panel on the Need to Protect Patients with Disabilities from Disability Discrimination if Life-Saving Critical Medical Care Must Be Rationed or Triaged Due to the COVID-19 Pandemic Overloading Hospitals


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/

Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for a Lively Panel on the Need to Protect Patients with Disabilities from Disability Discrimination if Life-Saving Critical Medical Care Must Be Rationed or Triaged Due to the COVID-19 Pandemic Overloading Hospitals

January 13, 2021

Watch TVO’s flagship current affairs program “The Agenda with Steve Paikin” tonight at 8 or 11 pm Eastern time for a half-hour panel on what the Ford Government should be doing to ensure that patients with disabilities do not face disability discrimination if life-saving critical medical care must be triaged or rationed. This rationing or triage could be needed soon if the soaring COVID-19 infection rates overload Ontario hospitals.

The four panelists are AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre legal counsel Mariam Shanuda, Dr. James Downar (a member of the Government-appointed external advisory Bioethics Table and an author of the March 28, 2020 critical care triage protocol with which the disability community had strong objections) and Ontario research chair in bioethics Prof. Udo Schuklenk.

This panel will appear on TV. It will also stream tonight at 8 pm on the Twitter feed and Facebook page of The Agenda with Steve Paikin. It will be permanently available on YouTube within a few hours after it airs. We will publicize the Youtube link once we get it.

We once again vigourously applaud The Agenda with Steve Paikin for addressing COVID-19 issues affecting people with disabilities. The Agenda stands in stark and resounding contrast to so many other media outlets that have not covered this life-and-death issue.

Back on April 14, 2020, only one month into the pandemic, The Agenda with Steve Paikin included a panel discussion on how critical care triage should be conducted if COVID-19 overwhelms Ontario hospitals. The three panelists on that program included Dr. Downar, Prof. Schuklenk, and another bioethicist. There was no one speaking from the perspective of the disability community. Those panelists did not themselves voice any disability issues in relation to the entire critical care triage topic. When Steve Paikin raised the fact that concerns had been publicly raised from the disability perspective, Prof. Schuklenk denied that there was a problem of disability discrimination. He had not read the March 28, 2020 critical care triage protocol that the Government had already sent to all Ontario hospitals.

After that program aired, AODA Alliance Chair David Lepofsky wrote The Agenda, urging it to cover the disability perspective on the triage issue as well as other disability issues in the COVID-19 pandemic. To its great credit, The Agenda included AODA Alliance Chair David Lepofsky and Wendy Porch (executive director of the Centre for Independent Living in Toronto CILT) on its May 8, 2020 broadcast. That discussion included the critical care triage issue as well as other disability concerns during the pandemic.

We are delighted that The Agenda is now revisiting the critical care triage issue, given major developments since last spring. To our knowledge, this is the first time that a major media outlet has brought together panelists from the medical, bioethics and disability community perspectives. We need the Ford Government to take part in such discussions, rather than continuing to hide in secret behind its external advisory Bioethics Table that makes no decisions in this area.

Please encourage your friends and family to watch this interview. Promote it on social media like Twitter and Facebook. Urge members of the Ontario Legislature to watch this interview. Call on the media to cover this issue too.

There have been 713 days, over 23 months, since the Ford Government received the final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that ground-breaking report. That makes even worse the serious problems facing patients with disabilities during the COVID-19 pandemic, addressed in this new episode of The Agenda with Steve Paikin.

For more background on this issue, check out:

  1. The AODA Alliance’s December 21, 2020 news release on the critical care triage issue.
  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  1. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  1. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.

7.The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.

  1. 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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Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities

December 21, 2020 Toronto: Could it soon be that if COVID-19 overwhelms Ontario hospitals, doctors could be told to decide to select some critical care patients to be taken off life-saving critical care that the patients are receiving, still need and want, on the ground that these services must be rationed and given to some other patients? Could a patient who objects to critical care being withdrawn from them be denied a right of appeal to an independent court or tribunal, even though their life is endangered? Could the health professionals making such decisions be insulated from any liability for their actions?

Despite excitement over new vaccines, frightening unreported new details have emerged that would allow all of this to happen, if the record-breaking surge in COVID-19 cases requires hospitals to ration or “triage” life-saving critical care services and beds. The Ford Government is considering a recommendation, made public on the AODA Alliance website, to direct doctors to remove life-saving critical care from some patients already in intensive care who don’t consent to this, if triage becomes necessary. This is even worse than rationing scarce unfilled critical care beds when more patients need them than there are available services.

“Ford’s Government hasn’t shown it has legislative authority to take the drastic, highly-objectionable actions that it is considering,” said David Lepofsky, Chair of the non-partisan AODA Alliance that allies with other disability advocates to protect patients with disabilities against discrimination if triage becomes necessary. “Triage recommendations that Ford’s Government is considering just came to light in the past days, and only because disability advocates campaigned for three months to get the Government to reveal those secret recommendations.”

In those newly revealed September 11, 2020 recommendations, the Government’s external advisory Bioethics Table commendably called on the Government to rescind the Government’s controversial earlier March 28, 2020 critical triage protocol that it had sent Ontario hospitals last spring, because that protocol discriminated against patients based on their disabilities – a concern disability advocates have pressed since April. But last Thursday, at a rushed roundtable that the Ontario Human Rights Commission held with disability, racialized and Indigenous communities’ representatives, those community representatives said the newly revealed triage recommendations, while an improvement, also have numerous human rights problems, even though the recommendations say that human rights should be respected.

These new triage recommendations would give patients, whose lives are in jeopardy, no appeal beyond the health care system (e.g., to an independent tribunal or court). They would insulate health care professionals against liability for refusing or withdrawing life-saving critical care.

On October 29, 2020, the Government, under pressure from people with disabilities and seniors, belatedly rescinded its discriminatory March 28, 2020 triage protocol, but put nothing in place to fill the vacuum. The time when critical care triage may be needed is rapidly getting closer. Health Minister Christine Elliott hasn’t answered any of the six successive AODA Alliance letters to her extensively detailing our concerns.

At last Thursday’s roundtable, a Government representative spoke up for the first time, revealing more disturbing news. A member of the Ford Government’s internal “Critical Care Command Table” responded to feedback at the roundtable, saying that a new approach to triage, addressing human rights concerns raised at the roundtable (with which he seemed to find merit), would have to wait until after this pandemic is over.

“That’s like saying we can be given an umbrella only after the rain has stopped. After months of the Government delaying, refusing to talk to us, and hiding behind its external advisory Bioethics Table for months, we cannot accept that it is now too late to ensure that critical care triage, if necessary, cannot be done without disability discrimination,” said Lepofsky. “We need the Ford Government to speak directly to us, and to obey the Ontario Human Rights Code and Charter of Rights.”

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

For more background on this issue, check out:

  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  7. 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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Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues


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/

Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues

December 18, 2020

SUMMARY

Yesterday, the AODA Alliance joined the ARCH Disability Law Centre and a number of other advocates from Ontario’s disability, racialized and Indigenous communities, all invited by the Ontario Human Rights Commission to a virtual roundtable discussion. It focused on the September 11, 2020 draft critical medical care triage protocol that was finally made public a week earlier. We have campaigned for three months to get that document made public.

Given the number of participants, we could only scratch the surface on this life-and-death issue during this two-hour roundtable. The painful fact that that day, Ontario had another record-breaking number of new COVID-19 infections made this discussion especially urgent and long-overdue.

A number of new important issues were identified at this roundtable by a spectrum of participants. All were in strong agreement on a range of concerns. The AODA Alliance’s concerns were echoed or endorsed by a number of participants.

Some of the key points which the AODA Alliance raised are spelled out in the newest letter to Ontario Health Minister Christine Elliot from the AODA Alliance, dated December 17, 2020 and set out below. We hope that the Minister will this time respond to our letter. The Ford Government has not answered any of our earlier letters to her on this topic.

Present to receive feedback at the roundtable were representatives from the Ontario Human Rights Commission and the Ontario-Government’s external Bioethics Table. As well, there were some representatives from the Ford Government, including from the Health Minister’s office, from Ontario Health, and from the Government’s internal Critical Care Command Centre. We asked to be sent the names and contact information for these provincial officials and are waiting to hear back. We also asked to be sent all the information on the Bioethics Table’s September 11, 2020 draft critical care triage protocol that the Government has sent to hospitals. No one spoke up to agree to send this to us.

This entire triage issue remains in flux. We will keep you posted. With COVID-19 infections rising and hospitals getting filled to capacity, we fear that triage may be taking place right now.

Send your feedback to us at [email protected].

For more background on this issue, check out:

  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol.
  2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, and its December 15, 2020 letter to Health Minister Christine Elliott.
  4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  7. 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

December 17, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

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/

December 17, 2020

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 Government’s Protocol for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We urgently write to follow up on our five unanswered letters to you dated September 25, November 2, November 9, December 7 and December 15, 2020. These ask about the Ford Government’s plans for deciding which patients would be refused life-saving critical medical care that they need, if the record-breaking surge in COVID-19 cases overloads Ontario hospitals and requires rationing or “triage” of critical care beds and services.

This morning, we took part in a two-hour virtual roundtable, convened by the Ontario Human Rights Commission and the Government-appointed COVID-19 Bioethics Table. It was convened on very short notice to gather feedback on the Bioethics Table’s recently-released September 11, 2020 proposed critical care triage protocol.

These are among the many urgent points that arose at or from the discussion at that roundtable:

  1. None of us invited to that roundtable from the disability, racialized or Indigenous communities had had anywhere near the time we needed to properly review the detailed 36-page September 11, 2020 draft critical care triage protocol. Such virtual face-to-face consultations are vital but must be preceded by enough time to prepare. Sending in written submissions is no substitute. Don’t now consider that the consultation check box can be ticked.
  1. No one has shown us that anything in the proposed triage protocol is authorized by law. We have raised this concern time and again. The most interesting and thorough discussion with the Bioethics Table on how triage should be carried out is utterly irrelevant if the protocol, whatever it says, is not properly mandated by law – a law that passes constitutional muster.

For example, it will be shocking and deeply disturbing to many if not most to learn the draft triage protocol would have doctors under certain triage circumstances actually withdraw critical care services from a critical care patient who needs those services and who is in the middle of receiving those insured medical services. How can a mere memo from some bureaucrat in the Ministry of Health or from Ontario Health purport to authorize that, if there is no legislative authority for it? Couldn’t that give rise to possible criminal responsibility, for those taking such action? We don’t believe that a provincial memo overrides the Criminal Code of Canada.

  1. It appeared that none of us, from whom input was being sought, could understand from this 36-page document exactly how a doctor is to specifically decide who will be refused critical care under the September 11, 2020 draft triage protocol. We cannot give the kind of detailed input that is needed without that being clarified. We wrote the Bioethics Table co-chairs about this in advance of this meeting. No such clarification was provided.
  1. An extremely worrisome revelation was made in the only statement we have heard from anyone within the Government’s internal critical care triage infrastructure. Dr. Andrew Baker identified himself as a member of the Ministry of Health’s Critical Care Command Centre. Right near the end of the roundtable, responding to feedback at the roundtable, Dr. Baker stated that doctors value life inherently, and that at present, doctors “default to life years, when we have finite resources. One principle, life years.”

What we take from this is that at present, such triage decisions would be made based on “life years saved.” He went on to say that 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.

That statement in effect summarily and categorically dismissed all the serious human rights and constitutional concerns we had raised for two hours as not ready to be implemented during this pandemic, even if critical care triage becomes necessary.

We strongly disagree. The Government cannot give up on this now. The thought that we might not have time to put these principles into action now is especially cruel, since our community has been pleading with your Government since early April to directly consult us on this issue.

Dr. Baker’s endorsement of using “life years saved” points to an approach riddled with discrimination because of age, disability, or both. Minister, Dr. Baker’s single statement crystalizes so many of our concerns. It reveals that whatever is written in this or other triage protocols won’t matter at the front lines, and that vulnerable seniors and people with disabilities, among others, now have a great deal to worry about.

This requires you to immediately take over personal leadership on this issue, and to let our vulnerable communities speak directly to you and your senior officials.

  1. From what we can determine, the September 11, 2020 draft triage protocol would have a doctor or doctors assess, based on an individual clinical assessment, if a patient, needing critical care, has less than 12 months to live. As I pointed out at the roundtable, Dr. James Downar, of the Bioethics Table, has previously told us that when doctors assess whether a patient has less than 3 months to live in order to decide if that patient should be allowed to go into palliative care, doctors “lie”. By this, we understand him to mean that they try to make a result-oriented assessment to get palliative resources for their patient.

If doctors routinely lie for assessing a patient’s likely mortality within three months, we have every reason to fear that they could do the same when the figure is changed from three months to twelve months, in connection with critical care triage decisions. We realize that there is a difference between admission to palliative care on the one hand, and admission to critical care on the other. However, for current purposes, that difference does not make a difference.

  1. The September 11, 2020 draft critical care triage protocol, like the two earlier versions that the Bioethics Table produced this year, give these life-and-death decisions over to doctors. As addressed in our next point, we think this needs reconsideration. It provides no appeal from those doctors to an outside independent body, such as a court or the Consent and Capacity Board. Such an appeal is needed. Moreover, it proposes to immunize doctors and other health care professionals making these life-and-death decisions from any accountability. It states that the protocol should:

“4.       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.”

It is certainly questionable whether that can be done. We believe it is beyond question that it should not be done.

  1. As we also emphasized at the roundtable, it is not clear to us that these purely medical triage criteria are the way for Ontario to go. Other non-medical triage criteria outside the preserve of doctors are worth considering.

Minister, please talk to us. Have your Ministry officials talk to us. Don’t wait until it is too late.

Stay safe.

Sincerely,

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

Enclosure: December 11, 2020 email from AODA Alliance Chair David Lepofsky to Jennifer Gibson, Bioethics Table co-chair

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]

Jennifer Gibson, Co-Chair, Bioethics Table [email protected]

Dianne Godkin, Co-Chair, Bioethics Table [email protected]



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Send Us Your Feedback on the Information and Communication Standards Development Committee’s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act


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/

Send Us Your Feedback on the Information and Communication Standards Development Committee‘s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act

December 17, 2020

            SUMMARY

Over the past weeks, there has been a ton of breaking news on different fronts of our never-ending campaign for accessibility for people with disabilities. Before we shut down for the holidays, we’re going to try to catch you up on some that we have not earlier been able to address.

On or around November 16, 2020, the Ford Government made public the final recommendations of the Information and Communication Standards Development Committee. We set out those final recommendations below.

What is this about and what does it mean for 2.6 million Ontarians with disabilities? The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is an enforceable and binding provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for action.

Almost ten years ago, back in June 2011, the Ontario Government enacted the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions requiring the accessibility of information and communication. Those provisions are often called the 2011 Information and Communication Accessibility Standard.

Under the AODA, the Ontario Government is required to appoint a Standards Development Committee five years or less after an accessibility standard is enacted, to review it and see if it needs to be improved. Therefore, in 2016, the Ontario Government appointed the Information and Communication Standards Development Committee to review the 2011 Information and Communication Accessibility Standard, and to recommend any revisions needed so that this accessibility standard would best achieve the AODA’s purposes.

After meeting over a period of months, the Information and Communication Standards Development Committee came up with a package of draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them. The Ontario Government was required to do this under the AODA.

The public then had a few weeks to give feedback to the Standards Development Committee on its draft recommendations. For example, the AODA Alliance submitted a 73 page brief to the Information and Communication Standards Development Committee on November 25, 2019. Our brief commended much of what was in the Committee’s draft recommendations. It also offered extensive feedback and recommendations to the Information and Communication Standards Development Committee.

That Standards Development Committee was then required to meet again to consider all the feedback it received from the public. It did so. Among other things, on January 22, 2020, AODA Alliance Chair David Lepofsky was given an opportunity to present in person for 30 minutes to the Committee.

The Information and Communication Standards Development Committee then finalized its package of recommendations for revisions to the Information and Communication Accessibility Standard. On February 28, 2020, the Standards Development Committee submitted those recommendations to the Ford Government. The Government is required to make those recommendations public, so the public can give the Government feedback on them. For no discernible or justifiable reason, the Ford Government held off making the Standards Development Committee’s final recommendations public for eight months.

What comes next? Under the AODA, the Government can enact revisions to the Information and Communication Accessibility Standard. It can make all, some or none of the changes that the Information and Communication Standards Development Committee recommended. It can also enact revisions beyond those that the Standards Development Committee recommended.

We and the public therefore now have an opportunity to take our case for revisions directly to the Ford Government. We therefore invite your feedback on the Information and Communication Standards Development Committee‘s final recommendations, set out below. Given the incredible number of issues we are now addressing, we have not yet had a chance to analyze the Standards Development Committee’s final report and recommendations. You can always send us your thoughts by emailing us at [email protected]

Under the AODA, the Government is required to post the Standards Development Committee’s final recommendations for 45 days. Sadly, the Government under successive premiers has at times followed an irrational practice of taking down those recommendations after the minimum time period that the AODA requires them to be posted. Nothing would stop the Government from leaving them up and visible to all on the internet on a permanent basis. That would provide greater openness and accountability for the Government and the AODA itself.

Despite the Government’s past practice in this area, the AODA Alliance will continue its practice of leaving such reports and recommendations permanently posted on our website.

If the Government decides to make revisions to the Information and Communication Accessibility Standard, the AODA requires the Government to post the wording of the draft regulation it proposes to enact, for public comment. We will let you know if the Government does this.

We offer two examples here of the need for prompt action in this area. First, as was pointed out in the December 8, 2020 panel on accessible education on The Agenda with Steve Paikin, TVO’s online educational materials for school students doing distance learning are still replete with accessibility problems. TVO has announced no detailed plan of action to fix these. TVO is owned and operated by the Ontario Government.

Second, just weeks ago, the Ford Government’s Accessibility Minister issued an invitation in an inaccessible broadcast email to an upcoming event where he was to make an announcement on accessibility. The Government apologized for this. As it turned out, nothing new was announced at the event in question.

The Ford Government has repeatedly claimed to be “leading by example” on accessibility. These incidents are an awful example by which Ontarians should not be led in the area of accessible information and communication.

So far, the Ford Government has been very lethargic in fulfilling its duties to develop accessibility standards under the AODA. For example:

  1. In the spring of 2018, weeks before the 2018 Ontario provincial election, the Transportation Standards Development Committee submitted to the Government its final report proposing revisions needed to the 2011 Transportation Accessibility Standard. That has languished on the Ford Government’s desk since it took office in June 2018, two and a half years ago. Since then, the Government has not invited any public feedback on this, and has announced no plans in this area. Ontario thus continues to have a public transit system replete with disability barriers.
  1. As noted above, the Government sat on the final report of the Information and Communication Standards Development Committee for over a half a year before fulfilling its duty to make that report public, for public input.
  1. The Government still has not fulfilled its duty to appoint a Standards Development Committee to review the 2012 Public Spaces Accessibility Standard. The Government was required to appoint that Standards Development Committee fully three years ago. The current Government is on the hook for two and a half of the three years of AODA contravention.
  1. On taking office, the Ford Government left five existing Standards Development Committees frozen and in limbo for months, before allowing them to get back to fulfil their mandatory work. We had to campaign for months to get them unfrozen. That included, among others, the Information and Communication Standards Development Committee.

For more information on our multi-year campaign to make information and communication fully accessible to people with disabilities, visit the AODA Alliance’s information and communication web page.

To see what we asked the Information and Communication Standards Development Committee to recommend to the Ford Government, check out the AODA Alliance’s November 25, 2019 brief to the Information and Communication Standards Development Committee.

There have now been an unbelievable 686 days since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has still announced no comprehensive plan of new action to implement that blistering report, including its strong recommendations regarding the development of strong accessibility standards. That delay makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, addressed in a new online video we recently unveiled.

            MORE DETAILS

Information and Communication Standards Development Committee Chair’s letter to the minister

February 28, 2020

The Honourable Raymond Cho
Minister for Seniors and Accessibility
777 Bay Street
5th Floor, Toronto, Ontario
M7A 1S5

Dear Minister,

The Information and Communications Standards Development Committee has completed our legislative review of the Information and Communications Standards. As chair and on behalf of the committee, I am pleased to submit the final recommendations report for the proposed accessibility standard for your consideration.

In meeting the provisions of the legislative review, as set out in the Accessibility for Ontarians with Disabilities Act, we re-examined the long-term objective of the Information and Communications Standards and each of the requirements. Our review included all of the Standard’s sections, the focus areas identified in the terms of reference, and additional items raised by committee members well as a limited amount of external feedback.

As you wisely requested, we considered how to make it easier for businesses and the public sector to achieve accessibility in all of the recommendations.

The report is structured in two phases, stemming from an early and clear consensus that the current structure of standards is not keeping pace with technology. Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is a proposal for culture change in Ontario.

Our committee had extensive discussions in reviewing the path to a province where people with disabilities be able to participate fully and equitably in the creation and use of information and communication. As chair, and in-line with The Honourable David Onley’s recent report, I assess that relying on the AODA and its associated Standards will never achieve that objective. More is needed, and this report only begins to address those needs.

We considered public feedback and stakeholder presentations in finalizing our recommendations. We have reflected this in the report. We thank the individuals, and organizations who provided feedback on the initial recommendations report.

As chair, and past chair of Accessibility Standards Advisory Committee, it is prudent for me to comment on the effectiveness of the Standards development process. In short, the Standard development process is broken, primarily for the reasons listed below:

  1. Research and feedback: Current sources of information on the experiences of people with disabilities and obligated organizations are too narrow and heavily biased by lobby groups. The voices of individual people with disabilities and “obligated organizations” must be sought out broadly and intentionally. The few sources that are available are gathered at the end of the process – these ongoing insights must seed the process, not merely confirm its outcome.
  2. Bounded by current standards: Understanding that legislation requires an explicit review (as is current interpretation), the process needs to be more responsive to on-the-ground realities that may or may not be covered by legislation.
  3. Timing and permanency: These reviews are by nature, periodic. Instead, permanent bodies, staffed by full time professional appointees must be the norm. These appointees must be paid a significant salary to attract the best and brightest in Ontario, or more boldly, globally. These professionals are better equipped to capture and react to insights gathered from a vastly to-be-improved research process.
  4. Encourage risk and failure: Disability regulations around the world have failed to deliver on their promise. Acknowledge that publicly. Encourage, and fund, innovation that ensures Ontario is a place where people with disabilities be able to participate fully and equitably in all aspects of the economy and society. Notice that mere accessibility is not the benchmark.

It has been an honour to chair this committee and work alongside such dedicated members who exude professionalism and are comfortable with taking risk.

We look forward to the Minister’s response on these final recommendations.

Sincerely,
Rich Donovan
Chair of Information and Communications Standards Development Committee

Final Report of the Information and Communication Standards Development Committee

 

Originally posted at https://www.ontario.ca/page/copyright-information-c-queens-printer-ontario

 

Introduction

Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this act is to benefit all Ontarians by developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.

Accessibility for Ontarians with Disabilities Act, 2005

Accessibility for Ontarians with Disabilities Act, 2005

The act became law in 2005. Its stated goal is the creation of an accessible Ontario by 2025, through the development, implementation and enforcement of accessibility standards that apply to the public, private and not-for-profit sectors.

With the act, Ontario became the first province in Canada and one of the first places in the world to bring in a specific law establishing a goal and timeframe for accessibility. It was also the first place to legally require accessibility reporting, and one of the first to establish accessibility standards so that people with disabilities have more opportunities to participate in everyday life.

Accessibility standards

The accessibility standards under the act are laws that businesses and organizations with one or more employees in Ontario must follow so they can identify, remove and prevent barriers faced by people with disabilities. These standards are part of the act’s Integrated Accessibility Standards Regulation. Currently, there are five accessibility standards, and they apply to key areas of day-to-day life for Ontarians. These are:

  • Information and Communications
  • Employment
  • Transportation
  • Design of Public Spaces
  • Customer Service

Standards review process

The act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required. These reviews are carried out by Standards Development Committees. The act also requires that committees be comprised of representatives from industries or other organizations that are affected by the accessibility standards, government ministries with responsibilities relating to those industries and organizations and people with disabilities or their representatives.

As required by the act, the committee must:

  • re-examine the long-term objectives of the standards
  • if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025, as well as the timeframe for their implementation
  • develop initial proposed recommendations containing changes or additions that the committee considers advisable, and submit them for public comment
  • based on public feedback, make such changes to the proposed accessibility standards that it considers advisable, and submit those recommendations to the minister

This report presents the final recommendations for proposed accessibility standards by the Information and Communications Standards Development Committee.

Information and Communications Standards Development Committee

The committee was established in late 2016. The committee was originally composed of 23 members, however 3 resigned during the process. As of this final report, there were 20 members, 16 of these are voting members voting members. The remaining four members, who were non-voting, were drawn from ministries which have responsibilities relating to the sectors to which the standards apply. Nine of the voting members were people with disabilities or their representatives. All members, including those who resigned, are listed in appendix A of this report.

To begin its review, the committee was provided with stakeholder feedback from the Accessibility for Ontarians with Disabilities Division of the Ministry for Seniors and Accessibility (formerly the Accessibility Directorate of Ontario). This feedback was informed by incoming written correspondence, telephone calls, compliance-related activities and consultation with stakeholders.

Their first meeting—an orientation session—was held in March 2017. Through 2017 and into Winter 2018, the committee held several meetings to complete its initial recommendations. These initial recommendations were posted for public comment between July 24th, 2019 and October 18th, 2019. On January 22 and 23, 2020, the committee met one last time to finalize this report while taking into account public comments.

The committee’s deliberations benefitted from the diverse viewpoints and knowledge that members brought to the table. After each meeting, members sought feedback from their communities and networks to share at the following meeting. This input informed voting on recommended changes.

As noted above, this document sets out the committee’s final recommendations for proposed updated accessibility standards. As outlined by the act, the Minister shall decide whether to recommend to the Lieutenant Governor in Council that the proposed standard be adopted by regulation in whole, in part or with modifications.

Approach taken by committee

The standards deal with the way organizations create and share information and outline how they are to make information and communication accessible to people with disabilities. The standards require that accessible formats and communication supports be made available on request. They also cover such areas as emergency and public safety information, websites, feedback processes, as well as educational, training and library materials and resources and training for educators.

The committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, committee members agreed that the standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.

To assist with developing this advice, the committee created the Digital Inclusion Technical Subcommittee. The subcommittee’s main task was to provide expert advice to the committee about section 14 of the regulation, which sets out the accessibility requirements for websites and web content. All members of the subcommittee are listed in appendix A of this report.

In addition, the subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system can deliver the desired outcomes.

Based on the subcommittee’s advice, the committee settled on both a short- and long-term approach to making information and communication accessible for people with disabilities. This report is divided into two parts or phases.

Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Each of these recommendations contains:

  • an explanation of the issue
  • the specific language of the recommendation as voted on
  • an explanation of the intent and desired outcome of the recommendation
  • recommended timing for implementation of the revised requirement if applicable

Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is, in effect, a proposal for culture change in Ontario. The committee recognizes that, given its potentially transformative nature, this phase may take more time to develop and implement.

The committee recognizes that due to the nature of the topic, complexity of technology, simple and plain language may not have been viewed as a priority at the beginning of the process. Based on the feedback we have received and the knowledge we have gained through this process, the committee recommends any further public communication of this report should available in a simple language version.

Phase 1

This section focuses on the Information and Communications Standards outlined in the Integrated Accessibility Standards Regulation. Recommendations in this section are listed according to the different sections under the standards.

It should be noted that throughout this report, reference is frequently made to obligated organizations. These are organizations that are expected to comply with requirements in the regulation. Obligated organizations include:

  • the Government of Ontario
  • the Legislative Assembly
  • designated public sector organizations
  • large organizations, private or not-for-profit, with 50 or more employees
  • small organizations, private or not-for-profit, with one to 49 employees

Some requirements do not apply to all these organizations. Small organizations, for example, are exempt from some requirements. This report will specify when this is the case. If it does not, the requirements being discussed may be assumed to apply to all the above obligated organizations.

Recommended long-term objective

While developing its specific recommendations, the committee continuously considered the long-term objective of the standards. The act requires all the Standards Development Committees to establish these long-term objectives, and the Information and Communications Standards Development Committee is required to re-examine the long-term objective.

The current long-term objective of the accessible Information and Communications Standards is:

That by 2025, all information and methods of communication to and from an individual will be designed to be accessible to people with disabilities consistent with human rights law, the French Language Services Act (1990) (where applicable) and inclusive design principles. The committee intends for the requirements to build upon the principle of providing accommodation to people with disabilities to preserve and enhance dignity and independence.

The committee believes that the objective above is too complicated, and recommends the following clear and simple objective instead:

That people with disabilities be able to participate fully and equitably in the creation and use of information and communication.

Part 1: Regulation in general or Sections 9 to 11

Recommendations in this section are related either to the regulation in general or to Sections 9–11 of the regulation.

Recommendation 1: Feedback requirements

Section 11 of the regulation relates to the feedback organizations receive from the public, and outlines accessibility requirements around the feedback process. The committee learned that organizations were confused about the fact that there are different requirements related to feedback located throughout the regulation. Specifically, section 11: Feedback of the Information and Communications Standards and Section 80.50: Feedback process required of the Customer Service Standards have some of the same requirements.

The committee proposes the following:

The feedback requirements in Sections 11 and 80.50 of the regulation should be combined and placed in the General Requirements section of the regulation, ensuring both the format requirements of section 11 and the specific requirement for a process in Section 80.50 about goods, services and facilities remain. In addition, the committee recommends that clear definitions of the terms “feedback” and “communication” be included.

Timeline: Immediate

The intent of this recommendation is to eliminate the confusion caused by having requirements for a feedback process dealt with in two different parts of the regulation. This change should not modify the obligations of organizations but simply make them clearer and easier to find and understand.

Recommendation 2: Usage of portable document format (PDF)

During a 2016 meeting of the Standing Committee on Finance and Economic Affairs, the standing committee discussed a proposal to ban PDFs from government use. This is because PDFs are often inaccessible. While the proposal was not approved, it was referred to this formal regulatory review process. The Information and Communications Standards Development Committee discussed the fact that PDFs are often inaccessible, and while it is possible to make them accessible, the expertise needed to make a fully accessible PDF is seldom present in obligated organizations. However, the committee concluded that while certain problems do exist with PDFs, banning them altogether is not the best solution, particularly since they work well when made properly accessible.

The committee proposes the following:

Government should not ban the use of PDFs for any obligated organization.

Timeline: N/A

The committee did discuss a number of alternative measures, including non-regulatory approaches such as increasing education for government employees on how to make PDFs accessible, but did not vote on the matter.

Recommendation 3: Final review of regulatory language

The Minister may accept in whole, in part or with modifications the committee’s recommendations once they are received. The committee recognizes that members are not usually involved in the decision-making process after its final advice is submitted. However, some recommendations for the standards are highly technical, and the committee is concerned about ensuring consistency in the interpretation of those recommendations. In particular, there is concern about technical aspects related to section 14: accessible websites and web content.

The committee proposes the following:

Government use the technical expertise of the Digital Inclusion Technical Subcommittee as a resource, as needed, to clarify intent and technical accuracy during the regulatory drafting stage related to section 14.

Timeline: N/A

The intent of this recommendation is to avoid any possible confusion regarding the intent of the committee’s recommendations and to ensure that the government can easily obtain clarification if confusion arises.

Recommendation 4: Products and product labels

The current regulation states that products and product labels are not required to be made accessible unless specifically mentioned in the standards. Stakeholders have expressed concern that a large number of goods remain inaccessible because of this exemption. The committee agreed that there should, at the very least, be a digital format available for all products and product labels where applicable. The problem is that both federal and provincial governments regulate in this area, and so making a recommendation solely at the provincial level would be ineffective.

In order to ensure a solution to this issue is coordinated between the federal and provincial jurisdictions, the committee proposes the following:

The Government of Ontario should meet with the Government of Canada to look for solutions to the problem of accessible products and product labels. These solutions may include clarifying jurisdictional authority over different products. In addition, it is recommended that Ontario meet with various industries to explore non-regulatory solutions to this issue. Medical labelling should be a priority for action.

Timeline: One year for Ontario and Canada to produce a report that sets a strategic direction on the recommendations above. If a report is not created by the governments of Ontario and Canada by this time, then the recommendation is that Ontario develop a strategy within one additional year to address this, including creating an expert committee.

The committee recognizes that the exemption of products and product labels is an accessibility barrier, but also recognizes that a solution to this problem needs to involve all levels of government that have authority over this area. The committee also recognizes that technology offers the potential for organizations to develop innovative solutions to this issue and would like the Government of Ontario to work with industries to encourage the development of non-regulatory solutions.

Part 2: section 12

The following recommendations relate to section 12 of the regulation, which requires organizations to provide accessible formats and communication supports for people with disabilities. The committee discussed this at length and have a number of recommendations regarding section 12 – Accessible formats and communication supports.

Recommendation 5: Determination of suitability

If a person with a disability asks an organization for an alternate format or communication support, that organization is required to consult with the requester about the request. The final decision on whether to provide the requested alternate format or communication support is with the organization. The committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.

The committee proposes the following:

Change regulation 12.(2) to state: “The obligated organization shall consult with the person making the request and gain agreement in determining the suitability of an accessible format or communication support.”

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The intent of this recommendation is that the final decision on the suitability of an accessible format should not be left to the organization alone. Rather, both the organization and the person requesting an alternate format should work together to gain agreement on suitability. The committee recognizes that this may create an impasse, and this is partly what motivates recommendation 7 (to follow). Despite the potential for an impasse, the committee feels this recommendation will result in improved accessibility. The committee recognizes that with this change, organizations may need time to adjust their processes, so it is proposed that it be effective six months after the amended regulation is in force.

Recommendation 6: Timely manner

Section 12 of the regulation states that organizations must provide accessible formats in a ‘timely manner,’ considering the requester’s needs due to disability. Stakeholder feedback revealed that people with disabilities and organizations often do not agree on the definition of timely manner. Specifically, people with disabilities point out that organizations are only required to take the person’s needs ‘into account’ when deciding on what would be a timely manner.

The committee proposes the following:

Change the regulation to state that organizations must provide accessible formats in a mutually agreed upon timely manner which considers the circumstances of the requester, and the urgency of his or her request.

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The idea is similar to the intent of recommendation 5, which is to ensure that important decisions that affect people with disabilities must be made with their participation. In this case, it would require that organizations and people with disabilities agree on what is meant by a timely manner. Again, the potential for disagreement is recognized, but the committee feels this recommendation will result in improved accessibility. As with Recommendation 6, the committee is proposing that this change become effective 6 months after the amended regulation is in force, to give organizations time to prepare and adjust.

Recommendation 7: Agreement between people with disabilities and organizations

Certain sections of the regulation require or provide for feedback processes allowing people with disabilities to make their needs and positions clear to organizations. Unfortunately, there is currently no mechanism to resolve disagreements when either party is unhappy with the result. Clearly, such a mechanism would be useful.

The committee proposes the following:

The issue of a lack of mechanism to address disagreement between organizations and people with disabilities in any section of the regulation should be referred to the Accessibility Standards Advisory Council.

Timeline: Referred to the council immediately following the submission of the final proposed recommendations. The council should develop a mechanism within one year.

The intent of this recommendation is for the council to investigate the creation of a mechanism to support the satisfaction of both people with disabilities and organizations, in relation to requirements under the act and regulation. The council is best positioned to examine this issue.

Recommendation 8: Harmonization of section 12

As was noted in recommendation 1, organizations are confused by multiple and often duplicate requirements throughout the regulation. Specifically in this case, section 12 of the Information and Communications Standards and section 80.51 of the Customer Service Standards create duplicate requirements for providing accessible formats.

The committee proposes the following:

Requirements for alternate formats and communication supports should be combined and moved to one place, in the general requirements section of the regulation. There should be no material change in the requirements, except for any other recommendations made by the committee regarding section 12. A reference to the combined section in the general requirements should be made whenever requirements for alternative formats and communication supports are mentioned in the regulation.

Timeline: Immediate

The intent of this recommendation is to clarify requirements and eliminate confusion by ensuring they are contained in one section of the regulation. The committee feels that moving the requirement for accessible formats into the general requirements section of the regulation would also make it clear that this requirement applies to all of the standards, and not just to Information and Communications. To be clear, the intent is not to weaken requirements in any way.

Recommendation 9: On-demand conversion ready formats

Currently, there is sometimes a delay when the government is asked to provide alternate formats of documents. The committee feels that technology has advanced to the point where there is no real excuse for this delay.

The committee proposes the following:

The Government of Ontario and Legislative Assembly should produce a conversion-ready digital format of all public-facing materials and provide those materials on-demand:

  • ‘on-demand’ in this case would mean immediately, meaning that it should already have been created
  • ‘conversion-ready digital format’ means a format which has the properties it needs to be readily converted into an accessible format

Timeline: January 1, 2021

The intent of this recommendation is to strengthen the idea that accessible formats should not be offered as an accommodation, to be provided only when requested and only after a delay. Accessible formats and communications supports are necessary from the start as part of an accessibility foundation. This would be a significant new requirement for government, but given current technology, it is possible.

Recommendation 10: On-demand ASL and LSQ translations

In developing recommendation 9, the committee struggled with the fact that users of American Sign Language (ASL) and Langue des signes québécoise or Langue des signes du Québec (LSQ) would not benefit from the change in recommendation 9. It was agreed that while providing all public facing materials in ASL and LSQ on-demand would simply be too burdensome, there are certain types of information and communication which should be available in these formats.

The committee proposes the following:

The Government of Ontario should convene a meeting of deaf, hard of hearing and deafblind stakeholders to determine which materials should be provided by the Government of Ontario to the public in ASL and LSQ translation. The committee recommends that following the meeting, the materials identified start to be made available on-demand.

Timeline: One year for the meeting to occur, and January 1, 2021 for the requirement to be effective.

The committee’s intent is that the Government of Ontario find a fair and reasonable answer to the question of which types of materials should be available in ASL and LSQ on demand.

Part 3: Section 13

The following recommendations relate to section 13 of the regulation, which requires organizations to provide accessible formats of publicly posted emergency plans and procedures upon request. During discussion, many committee members expressed concern with current emergency outcomes for people with disabilities, and the committee feels that improving these outcomes is absolutely critical. The committee recognizes that the scope and overall effectiveness of the requirements in Section 13 are limited, and strongly recommends that other action to improve these outcomes be taken as soon as possible.

Recommendation 11: Emergency requirements

Section 13 in the Information and Communications Standards, section 27 in the Employment Standards and Sections 37 and 56 of the Transportation Standards are all related to emergency requirements. As has been noted previously in this document, having requirements located in different places throughout the regulation is confusing for all parties. In the case of emergency requirements, that is a particularly significant problem.

The committee proposes the following:

The emergency requirements throughout the regulation should be brought together and moved into the general requirements with no material changes to what is being required.

Timeline: Immediate

The intent of this recommendation is to ensure that nothing is missed, and no requirements are overlooked when it comes to protecting the lives of people with disabilities and their families. These requirements should be consolidated and given a clear and prominent position in the general requirements of the regulation.

Recommendation 12: Unacceptable emergency outcomes and preparedness

After a significant discussion regarding emergency outcomes, the committee has concluded that the preparedness of all levels of government for emergencies involving people with disabilities is unacceptable.

The committee strongly recommends the following to help protect the lives of people with disabilities and their families:

Disability and accessibility should be front and centre in the upcoming review of the Emergency Management and Civil Protection Act. To that end, the Solicitor General, who has responsibility for emergency management, should involve people with disabilities in the review. The Solicitor General should specifically include the Accessibility Standards Advisory Council. The same process should occur when the Fire Code is next reviewed.

Timeline: Immediate

The intent of this recommendation is to address the lack of emergency planning focused on the needs of people with disabilities. It is unacceptable and must be dealt with urgently.

Part 4: Section 14

The following recommendations relate to section 14 of the regulation, which sets out the accessibility requirements for websites and web content. In both stakeholder feedback and in the committee meetings, Section 14 received the most attention and led to the most significant level of feedback and discussion. It has become clear that there is a great deal of confusion surrounding the requirements of Section 14, particularly given the rapidly changing pace of digital society.

The globally accepted standard for web accessibility is a set of standards called the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), which is published by the World Wide Web Consortium (W3C). While this standard is the one used in section 14, stakeholders and committee members agree that is not clear enough how the WCAG 2.0 guidelines should be applied to many technologies beyond websites and web content, nor is it easy to determine when the requirements of WCAG 2.0 have actually been met.

In order to help clear up this confusion and also inform its recommendations, the committee created a Digital Inclusion Technical Subcommittee. This subcommittee provided two distinct sets of expert advice to the committee:

  1. Recommendations to address confusion and gaps in section 14 (part of the phase 1 recommendations)
  2. A proposal for a new model for these standards (see phase 2)

Recommendation 13: Mobile applications and new technologies

One of the most frequently asked questions during stakeholder consultations was whether and how section 14 applied to mobile applications. The answer, for the most part, is that they do not. The current requirements apply to web-based applications only, which does not generally include mobile applications.

The committee proposes the following:

The definition of website should be aligned with the definition used by the United States Access Board, the European Union and the United Nations Convention on the Rights of Persons with Disabilities, among others, which include mobile applications, interfaces or other technologies as required. Relevant sections of these definitions have been provided in appendix C.

Timeline: By 2021, which aligns with the existing requirement for all websites to be accessible.

The intent of this recommendation is for both mobile applications which run from a website, and those which run as a standalone device but rely on the internet for function, would be subject to accessibility requirements under section 14. These requirements would apply to the government and legislative assembly, the broader public sector and large organizations. For the purposes of Section 14, small organizations are currently exempt from accessibility requirements.

Recommendation 14: Procurement

Procurement refers to the purchasing or acquiring of goods or services. The subcommittee noted that there are no accessible procurement requirements specifically related to section 14. There are procurement requirements in the general requirements section of the regulation, but the subcommittee suggested that these are not strong enough to result in accessible digital procurement.

The committee proposes the following:

The Government of Ontario and designated public sector organizations shall incorporate accessibility design, criteria and features when procuring or buying goods, services or facilities. These criteria include:

  • using qualified third-party evaluation certification services established through programs such as:
    • the United States Access Board Trusted Tester Program
    • inclusive design or accessibility certificate programs such as those offered by colleges or universities
    • professional certifications from organizations such as the International Association of Accessibility Professionals (IAAP)
    • other professional service vendors that may qualify for such activities
  • both manual and automated verification of compliance to technical web and software criteria, not just automated testing
  • functional testing of usability by persons with disabilities
  • interoperability with alternative access systems (as defined in the glossary)
  • sign language and other communication modalities
  • the requirement to procure accessible authoring and development tools

This requirement would be in addition to the general accessible procurement requirements in the regulation. The reference criteria for authoring tools would be Authoring Tool Accessibility Guidelines (ATAG) 2.0 (A and B)

Timeline: January 1, 2022. Where an obligated organization has entered into a contract before January 1, 2022, it is not required to meet the requirements of this section. The intent of the committee is not to allow grandfathering past 2023.

The committee’s intent with this recommendation is to ensure that digital procurement by the Government of Ontario and broader public sector organizations includes accessibility criteria, and that authoring and development tools that are procured are accessible.

The committee would also like non-digital procurement as required by the procurement requirement in the general requirements to be strengthened. Since this is beyond the scope of the committee’s mandate, the committee would like this work to be referred to the Accessibility Standards Advisory Council and broader government bodies that manage procurement.

Recommendation 15: Differentiating organizations/high impact organizations

The obligations of organizations under the regulation are determined by how many employees they have, as this has traditionally been a measure of how much widespread impact they have. However, the subcommittee advised the committee that as technology evolves, the number of employees is no longer necessarily a good indicator of the impact organizations may have on Ontarians. The fact is that, increasingly, organizations with very few employees are able to provide a high level or volume of services and thus should be considered “high-impact organizations.”

The committee believes that section 14, and eventually the whole regulation, need to adapt to capture these new business models.

The committee proposes the following:

  • Create a definition for ‘high-impact’ organizations. One such definition might be an organization that has one or more Ontario employees and meets either of the following criteria:
    • one million or more average annual users in Ontario (free or paid)
    • $10 million or more in yearly global revenues
  • These newly defined high-impact organizations would have to comply with the Information and Communications Standards and report under the act, and be subject to the same requirements as large organizations
  • For such businesses as described above that are under federal instead of Ontario jurisdiction, or with no employees in Ontario, the province should engage in consultation with businesses and the federal government to determine and harmonize mechanisms to regulate them

Timeline: One year with proactive outreach.

The committee’s intent with this recommendation is to ensure that all organizations with many users in Ontario, and therefore having a large impact on the province, are complying with section 14 of the regulation. This approach could be used for other requirements in the future where appropriate.

Recommendation 16: Significant refresh

Currently, the requirements of section 14 apply to organizations which either create new websites or significantly refresh existing websites. Stakeholder feedback and advice from the subcommittee suggested there is confusion about what ‘significant refresh” means, as the term is subjective. In addition, the committee learned that since Section 14 requirements apply to websites that are new or significantly refreshed, some organizations are choosing to update their websites only a bit at a time, thus avoiding the requirements. This may actually result in reduced accessibility for users.

The committee proposes the following:

  • Any content that is new or which an obligated organization changes, updates or adds to a website must meet the accessibility requirements of section 14
  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that section 14 include examples for the sake of clarity

Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.

The intent of this recommendation is to bring the section 14 requirement closer to its intended function, which is to ensure that over time, organizations develop greater accessible content for users with disabilities.

Recommendation 17: Practicability

Section 14 contains an exemption for obligated organizations which gives them the ability to claim that making a website accessible is ‘not practicable’. The committee feels that this term is too vague and might allow some organizations to avoid doing something they are actually able to do.

The committee proposes the following:

Clearly define the term “not practicable,” bringing it in line with the term “undue hardship,” as set out by the Ontario Human Rights Code. A link to this terminology has been provided in appendix C.

Timeline: Immediate

The intent of this recommendation is to reduce how easy it is for obligated organizations to use vague wording in the standards as an excuse to not fulfil their requirements. Aligning the language with that of the Ontario Human Rights Commission would bring significant clarity, as both the commission and the Human Rights Tribunal of Ontario have previously ruled on what undue hardship actually is.

Recommendation 18: Harmonization and application across requirements

Section 14 is intended to bring about greater accessibility in websites. The committee noted, however, that websites are mentioned in different sections of the regulation, but only in section 14 are the accessibility requirements explained. In the view of the committee, this makes it too easy for stakeholders to overlook or miss the requirements.

The committee proposes the following:

It should be made clear that section 14 applies to all sections of the regulation. This could be communicated as a reference to section 14 wherever websites are directly referenced in the regulation.

Timeline: Immediate

The committee’s intent with this recommendation is to make sure obligated organizations follow website accessibility requirements by reducing any confusion about what they are obligated to do.

Part 4, subpart 1: Section 14 exemptions

Section 14 identifies a number of situations in which websites or web content do not need to comply with accessibility requirements. The committee does not believe that these exemptions are functioning as intended and recommends changes to these exemptions.

Recommendation 19: Extranet exemption

Section 14 covers internet, intranet and extranet websites, and in the process it defines what these are. Intranet websites are websites that can be accessed from within a particular organization’s network. Currently, not all organizations are required to make these sites accessible. Moving on to extranet websites, section 14 defines these as websites which require a login. It considers these as an extension of intranets, and therefore also exempt for most organizations. The problem is that a great number of other internet websites that happen to require logins are therefore also considered extranets and so are exempt, which is certainly not desirable.

The committee proposes the following:

The exemption for public-facing websites with a log-in (previously referred to as extranets) should be removed and these types of websites should be required to comply with the regulation.

Timeframe: New public-facing websites with a log-in must comply by January 1, 2022, and all public-facing websites with a log-in must comply by January 1, 2023.

The intent of this recommendation is to completely remove the exemption for extranet websites, ensuring not only that these be required to comply with section 14, but also that other internet websites not be able to avoid the requirement simply because they use logins. The committee recommends a longer timeframe for implementation as this would be a new requirement.

Recommendation 20: Intranet exemption

Further to recommendation 19, the committee believes that technology has advanced to the point where all organizations should be able to make their websites accessible under section 14. Thus far, only the Government of Ontario and Legislative Assembly are required to do so. The subcommittee and committee do not believe there would be a major issue with extending this requirement to the broader public sector and large organizations.

The committee proposes the following:

The exemption for employee-facing websites and content (previously referred to as intranets) should be removed and, like all other websites, these types of websites should be required to comply with the regulation.

Timeline: New employee-facing websites must comply by January 1, 2022, and all employee-facing websites must comply by January 1, 2023.

For clarity, the committee recommends that all definitions related to a type of website be removed and that section 14 simply apply to all websites, internet or intranet for all obligated organizations. Because this would be a new requirement, the lengthy timeline above is recommended.

Recommendation 21: Pre-2012 exemption

Section 14 provides an exemption from having to make web content accessible if that content was first published on a website before 2012. The committee discussed that this exemption has created two problems. First, some organizations are using this exemption as a loophole that enables them to continue using some content from pre-2012 websites on new websites. The second problem is that organizations are taking useful pre-2012 content, such as historical records, off their websites when they move to a new or refreshed website because they do not have the resources to make this content accessible.

The committee proposes the following:

A category should be created for older archived content. A potential model for this would be the federal Treasury Board Secretariat of Canada archived content policy. This would grant an exemption only to non-active documents. Active content, which is anything that requires input or, like forms, can be changed, will not be covered under this exemption. Pre-2012 images used for navigation in refreshed websites must be made accessible.

Timeframe: Immediate

The intent of this recommendation is to ensure that no content which is intended for active use can be exempt, and that inactive, archived content which is for informational purposes only can remain exempt.

Recommendation 22: Live captioning and audio description

Currently, the Government of Ontario and Legislative Assembly are the only organizations which must meet the live captioning and audio description requirements in the Web Content Accessibility Guidelines (WCAG) 2.0. All other organizations are exempt from implementing this requirement.

The committee proposes the following:

  • By January 1, 2022, the exemptions to the WCAG 2.0 Level AA guidelines regarding live captioning and audio descriptions should be removed.
  • Between now and January 1, 2022, obligated organizations should put in place the infrastructure to support live captioning and audio description. Organizations which are currently exempt and are required to prepare a multi-year plan should include progress toward this infrastructure in their plan.

Timeline: Exemptions removed by January 1, 2022, to be evaluated for acceleration by the next committee.

The intent of this recommendation is to have obligated organizations plan infrastructure, adopt training, and generally get ready to implement live captioning and audio descriptions by 2022, or sooner if the next committee should choose to accelerate the timeline. The committee’s intention is to establish a high standard (equal to CRTC standards for live captioning) of quality in live captions.

Recommendation 23: Web hosting location

Section 14 only applies to content which organizations control either directly or through a contractual relationship that allows for modification of the product. The committee has learned that some organizations are interpreting this to mean that if their websites are hosted on servers outside the province, they may claim exemption from the section 14 requirements.

The committee proposes the following:

Section 14 should apply to obligated organizations no matter where their web servers are located.

Timeline: One year

The intent of this recommendation is to clarify that the regulations apply to obligated organizations regardless of where their websites might be hosted.

Recommendation 24: New and emerging technologies

New and emerging technologies present the risk of discriminating against persons with disabilities. As well, people with disabilities are more vulnerable to abuses of new technology and existing and emerging privacy protections do not work for them. These issues include:

  • data gaps: people with disabilities are not reflected in existing data.
  • algorithmic bias: data analytics reflect human bias.

Even if and when these risks are ameliorated, these technologies (for example, artificial intelligence) make decisions and take actions based on an average or majority. People with disabilities are very different from each other and often represent a minority of 1. People with disabilities are harmed by data in both directions. The risks are dismissed because they only affect a small number. The benefits are not pursued because they only benefit a small number.

Note: Additional resources available in appendix C.

The committee proposes the following:

When decisions are being based on data analytics using population data, there should be a disability impact assessment.

Government should immediately create a task force to work with the government on the design and testing of its digital services and to investigate risks, risk mitigation and opportunities in the context of the disability ecosystem. The task force should include experts in disability use case, emerging technologies and data analytics, the majority of whom are people with disabilities from a wide functional cross-section. This task force shall act as an ongoing bridge to phase 2.

Recommendation 25: Web Content Accessibility Guidelines (WCAG) Version

The version of the Web Content Accessibility Guidelines referred to in section 14 of the regulation is out of date.

The committee proposes the following:

When the requirement to comply with WCAG 2.0 AA in section 14 is fully implemented (January 1, 2021), Government should update the requirement to the most recently published version of WCAG (for example, WCAG 2.1) within 1 additional year.

Part 5: Sections 15, 16, 17 and 18

The following recommendations relate to Sections 15, 16, 17 and 18, which cover educational and training facilities, producers of educational and training materials, and libraries of educational and training institutions.

One of the topics that was brought to the committee’s attention was the difficulty that education providers and students frequently have obtaining accessible resources. The committee has heard that these resources are too often unsatisfactory or delayed provision of these resources is resulting in poor learning outcomes for students with disabilities. Based on these observations, the committee recommends the following:

Recommendation 26: Purchase of accessible teaching/training materials

During its education and training discussions, the committee noted that the procurement of course materials is a good time to ensure that accessible versions are available.

The committee proposes the following:

It is recommended that obligated organizations that are educational or training institutions be required to order text books or other curricula materials, printed or digital, from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print or digital materials. For clarity sake, digital includes but is not limited to static, dynamic and interactive content.

These materials should meet or exceed the obligations of education providers as described in the Ontario Human Rights Commission’s “Policy on accessible education for students with disabilities”.

Timeline: Immediate

Recommendation 27: Definition of educational and training institutions

Education and training accessibility requirements in the regulation only apply to organizations that are classified as educational or training institutions, even though many organizations which do not meet that classification provide these services.

The committee proposes the following:

That the government consider including all organizations (public or private) that provide formal education and training in the requirements.

The committee has asked the public what types of organizations should fall under the definition of formal, and provides this information to the government with this report in appendix C.

Timeline: Immediate

Recommendation 28: Increasing captionist capacity

Committee members are concerned that there are too few trained captionists in the province. While training for captionists does exist in Ontario, the committee believes there is not enough supply to meet the potential demand.

The committee proposes the following:

The Government of Ontario should explore, in partnership with post-secondary institutions, employers and apprenticeship bodies, establishing a post-secondary course to train captionists, possibly in partnership with a court stenographer’s course.

Timeline: Immediate

Recommendation 29: Accessibility in education

The committee believes that the inclusion of accessibility-related content in all levels of education curricula is one of the best ways to influence cultural change.

The committee proposes the following:

The government should explore ways to make education and skills development about accessibility, including e-accessibility, part of early years, elementary, secondary and post-secondary curricula.

Timeline: Immediate

The intent of this recommendation is to increase the amount of accessibility-related content in all levels of education in Ontario.

Recommendation 30: Accessibility in information and communication tools and systems

Some members of the committee have noted that there is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communication tools and systems, and this leads to a lack of accessibility in these products.

The committee proposes the following:

All obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of all people with disabilities, including deaf, deafblind and hard of hearing people who use ASL and LSQ.

Timeline: One calendar year from effective date.

The intent of this recommendation is to ensure that information and communication tools and systems are created with accessibility features built-in and are maintained by individuals who are familiar with accessibility features.

Recommendation 31: Accessibility in provincially regulated professions

The question of accessibility in provincially regulated professions was of significant interest to the committee. Provincially regulated professions provide a wide array of services to Ontarians, and ensuring they understand the needs of people with disabilities would help make these services more accessible. The committee believes that education around accessibility in all provincially regulated professions could greatly enhance awareness and further prevent attitudinal barriers.

Note: As a resource, the committee refers to the Ontario Human Rights Code “Policy on ableism and discrimination based on disability.

The committee proposes the following:

Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers. These should be worked into instructional planning and course design for organizations which provide education or training.

Timeline: One calendar year

The intent of this recommendation is to integrate accessibility into the education and certification of regulated professionals in Ontario.

Recommendation 32: Education standards

The Information and Communications Standards of the regulation currently contain requirements related to education and training. When the committee first reviewed Sections 15–18 and proposed recommendations 24–29, the Government of Ontario had created committees to propose new standards in the regulation for education.

The committee proposes the following:

If the government creates education standards with requirements that are equal to or greater than those requirements found in Sections 15–18 of the regulation, including the result of recommendations 24–29 made in this report, these sections can be moved to the Education Standards.

If any elements of Sections 15–18, including the result of recommendations 24–29 made in this report, are not reflected in newly created education standards (or within the jurisdiction of education standards development committees) for example application of standards to private schools and colleges—these requirements must be retained in the Information and Communications Standards.

The committee’s intent is to make recommendations 24–29 related to Sections 15–18, while allowing the government to house these requirements in the most logical place in the regulation.

Part 6: Section 19

Section 19 relates to public libraries. The committee has reviewed and consulted on this section and voted to confirm that it recommends no changes to this section.

Phase 2

Declaring a breakdown – a call for a new way forward

During their deliberations and interactions with constituents, it became clear to the members of the committee that the current approach to regulating the accessibility of information and communication in Ontario is flawed, and if the approach does not change, the policy aims of the regulations will not be fully achieved. There was consensus that reliance on a wholly prescriptive standard that is not responsive to changes in technology and its application is a fundamental shortcoming of the current approach. There is also a need to enhance the active participation of those who build and use technology daily both to understand and to mandate the application of technologies in ways that maximize economic and social participation for Ontarians with disabilities.

A new model for accessibility regulation

As mentioned at the beginning of this report, the Digital Inclusion Technical Subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system is really able to deliver the desired outcomes.

In the process of considering the broader questions, the subcommittee had thorough discussions which formed the basis of a broad new proposal, presented here in this second chapter of the report, to improve access for Ontarians with disabilities: The Accessibility Ecosystem model.

The Accessibility Ecosystem model responds to what the subcommittee perceives as weaknesses in the current regulatory model and introduces a response that is better suited to a world of rapidly changing technology and business models. The committee also recognizes the need for a more responsive model that is focused on equipping obligated organizations with the knowledge and tools to best serve Ontarians on the front lines of business and government service delivery.

Government’s broader use of the Accessibility Ecosystem model

Though the application of the Accessibility Ecosystem is proposed first for digital content and its applications, this model may prove to be more broadly applicable to other standards.

The Accessibility Ecosystem is presented at a very high level, both to maximize compatibility with various requirements and in recognition that more in-depth research and development needs to be done by government and relevant stakeholders to take this model to the next step.

The committee proposes:

  • That the government adopt and operationalize phase 2 as the regulatory approach to accessibility in Ontario. The committee is aware that this approach will continue to evolve. The intent of the committee is to have phase 1 implemented in parallel with phase 2. Phase 1 should occur during the transition to phase 2.
  • Note: The infographics and additional materials (for example, long descriptions) have been submitted alongside this report after the appendices.

Timeline: Two years from submission of the final recommendations for phase 2 to be fully implemented.

What this document contains:

Current context:

  • committee investigates what the current regulatory model seems to be missing.

Accessibility Ecosystem:

  • the Accessibility Ecosystem model is proposed as a solution, and its advantages are listed.

Laws, Trusted Authority, Community Platform and Compliance

The Accessibility Ecosystem, listed and explained:

  • How is the new model better?
  • A look at what sets the Accessibility Ecosystem apart.
  • Cost, funding and sustainability
  • An explanation of how, far from being an onerous cost, the new model is actually a shrewd investment.

Current context

The subcommittee’s starting point was an acknowledgement of the fact that our understanding of accessibility has evolved since the act was drafted and implemented. People with disabilities are as diverse in their needs and perceptions as people without disabilities, and perhaps even more so. For that reason, one-size-fits-all approaches to accessibility often don’t work. In addition, it is now understood that even the word ‘accessible’ does not have a single definition and is more related to technical requirements than a person’s demand for a great experience. What is meant by accessible depends on the person and his or her goals and context. What this means is that accessibility can only be achieved through a process of inclusive design – one that recognizes that all people are variable and diverse, and our products and services must make room for a wide range of human differences.

It is also critical to understand that even if all the specified goals of the act were to be achieved by 2025, it would not be a case of mission accomplished. There would still be people with disabilities for whom Ontario is not accessible. Our society is changing all the time. New barriers to accessibility are constantly emerging, as are new opportunities for greater accessibility. The subcommittee concluded that creating an accessibility check list, however comprehensive, to address the needs of all Ontarians with disabilities is an impossible task. People not represented in the deliberations would likely be left out, unanticipated new barriers would not be considered, and new technologies that might be used to address barriers would not be leveraged. At that point, the subcommittee decided it was time to take a critical look at the current act and regulation model. What it found was five areas in which the current model is simply not meeting the needs of Ontarians with disabilities:

Participation

In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.

The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • students, many of whom participate in projects such as “mapathons,” design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • persons with disabilities and their families or support communities
  • professional organizations
  • community volunteers
  • civil society

The efforts made by these people, groups and organizations are significant, but there is currently no real way to collect, harness and showcase their contributions or quantify their economic impact.

Updating

Other than the five-year review, there is currently no mechanism for keeping the standards up to date. This is especially problematic when it comes to information technology systems and practices, which are changing at an accelerating rate and affecting more and more essential aspects of our lives. Barriers to accessibility emerge suddenly, and if they are not dealt with immediately they can spread and multiply. Opportunities for greater accessibility appear, but if they are not quickly seized they can disappear. In this fast-moving world, accessibility standards quickly fall out of date, and the system is not equipped to deal with that.

Integrating innovation

Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.

Review and feedback

Legislation often triggers new demands for services. The act has prompted the growth of the accessibility services sector in Ontario. Training, evaluation, design, development and remediation services are now effectively growth industries in Ontario. However, these businesses and services range in expertise and quality, and there is currently no mechanism for reviewing or providing feedback about them.

Indicators

There is currently no way of tracking progress toward accessibility goals. No progress indicators have been established, making it extremely difficult to determine how well accessibility standards are working.

Based on all of this, the subcommittee concluded that an entirely new approach needs to be taken. This approach must move from presenting accessibility as an obligation to be borne by a specific group of organizations in Ontario, to a process that all Ontarians participate in, and benefit from. This is what the committee means when it refers to a culture change, and the vehicle for that culture change is the proposed new “Accessibility Ecosystem.”

The Accessibility Ecosystem

Fundamentally, the Accessibility Ecosystem is a new way of organizing the standards within the regulation. Initially, it is being proposed for the Information and Communication Standards, though the committee believes that it could one day be the framework for the full set of regulation standards. The primary aim of the Accessibility Ecosystem is to encourage organizations to see the act less as an obligation than as something in which they participate for their own benefit, and the benefit of all Ontarians. For that reason, the first step in implementing this new system, however symbolic, would be to rename “obligated organizations” as “participating organizations.” This reframing will also provide a way to keep improving and updating how we address barriers faced by persons with disabilities in Ontario, up to and beyond 2025.

The objectives of the Accessibility Ecosystem are as follows:

  • keep up with changes in technology
  • respond to new barriers
  • respond to new opportunities
  • respond to barriers not anticipated when the standards were written
  • encourage and support organizations and the larger community in finding innovative ways to address barriers
  • discourage the ‘us-them’ attitude towards accessibility, where the interests of persons with disabilities are seen as counter to the interests of businesses
  • encourage working together to make things more accessible to the benefit of everyone
  • communicate that accessibility is a responsibility we all share
  • show how accessibility and inclusive design are a good way to do business, and a good way to grow the economy and economic participation for Ontarians with disabilities
  • reduce confusion about the regulations and make it easier to find tools and resources needed to comply with them
  • provide clear, up-to-date, specific advice regarding how requirements can be met
  • create the conditions and supports so that all Ontarians feel that they can participate in removing barriers

The proposed ecosystem has three interdependent parts. They support one another, and all play a role in telling organizations what they need to do to remove barriers and expand opportunities. The ecosystem as a whole provides the balance between legal compulsion and alignment with current technical practices. All three parts require funding and ongoing support. The three parts are the laws, the Trusted Authority and the Community Platform.

The laws

This is the least flexible part. The laws would establish requirements, but not specify how they must be met. The Laws include three types:

  • Functional Accessibility Requirements (FARd) (contained in appendix B of this report). These are requirements that are constant. They do not mention specific technologies, to avoid a situation in which a technology changes and evolves to the point where the requirement no longer makes sense. If organizations need help understanding how to meet the requirements, they are linked to acceptable methods of doing so by the Trusted Authority. These requirements are modeled on and harmonized with requirements adopted by both the European Union and relevant US accessibility laws. The functional requirements do not replace technical requirements but specify what they are trying to achieve.
  • Regulations regarding the policies of the ecosystem. These govern the Trusted Authority, the Community Platform and updates to the laws.
  • Regulations that support system-wide long-term changes and improvements in the accessibility of Ontario. These include:
    • integrating education about accessibility in all education, starting as early as Kindergarten – Grade 12
    • integrating accessibility into professional training for all professions that have an impact on products and services
    • requiring accessibility when purchasing products and services, especially when spending public funds
    • including people with disabilities in decision making and planning processes, and ensuring that mechanisms for participation are accessible

Trusted Authority

The Trusted Authority would be an independent group that provides ongoing oversight and support to the system of accessibility standards, in order to ensure that the system is performing as it should and accomplishing what it is intended to accomplish. The Trusted Authority would include people with a wide range of expertise, including lived experience with disabilities.

As implied by the name, the Trusted Authority must be credible, understandable and reliable. All its activities must be transparent and open to public scrutiny. The Trusted Authority would have the power to consult with any individual or group to address knowledge and skill gaps.

The Trusted Authority would:

  • Determine and provide clear up-to-date qualifying methods for meeting regulations. (The current set of qualifying methods includes the Web Content Accessibility Guidelines 2.0, the Authoring Tool Accessibility Guidelines 2.0 and other standards such as Electronic Publication (EPub) and International Organization for Standardization (ISO) 24751).
  • In addition to qualifying methods, ensure that necessary tools and resources are available to use the qualifying methods.
  • Provide guidance regarding how to achieve the functional accessibility requirements, specific to the particular organizations. This includes links to resources and tools in the Community Platform.
  • Retire qualifying methods that are out of date.
  • Clarify laws when there is uncertainty or when there are changes.
  • Review new and innovative methods proposed by organizations and individuals to determine whether they can be used to meet the requirements.
  • Address gaps in available qualifying methods to meet the requirements.
  • Ensure that the barriers experienced by all Ontarians with disabilities are addressed by regularly evaluating who might be falling through the cracks. This includes individuals with a range of technical literacy, individuals in urban, rural and remote communities, Ontarians at all income levels and individuals with disabilities that are not visible or episodic disabilities. It also includes people who experience other barriers that might worsen the barriers experienced due to disabilities.
  • Provide, track and make publicly available indicators of progress toward an accessible Ontario. Examples of those indicators might include the number of companies with an accessibility officer, the number of accessibility complaints received and their resolution, the number of employees who self-identify as having a disability, and the number of Ontarians trained in accessibility skills.
  • Prioritize accessibility processes and tools rather than specialized technologies and services for people with disabilities. In this way, people with disabilities do not have to bear the additional cost of buying their own specific technology.
  • Support innovation that recognizes the diversity of needs experienced by people with disabilities rather than a “winner takes all” or a “one winning design” approach.
  • Support recognition that people with disabilities must be designers, developers, producers and innovators, and not only consumers of information and communication.
  • Qualifying methods must include accessible tools and processes.

The Trusted Authority would maintain an online interactive guide for participating organizations. This guide would let organizations know which FARs apply to them, what qualifying methods they could use to meet the requirements, and what tools and resources are available to help them implement the qualifying methods. The guide would be inclusively designed to consider the different types and ranges of expertise of organizations in Ontario.

It is recommended that the Trusted Authority report directly to the Legislative Assembly. It is the responsibility of the Legislative Assembly to maintain the FARs and the responsibility of the Trusted Authority to maintain the qualifying methods. Funding commitments for the Trusted Authority must span two political terms to ensure sustainability and independence. Decision-making regarding leadership of the Trusted Authority should be transparent and inclusive of Ontarians with disabilities.

Community Platform

The Community Platform would be an online platform, open to everyone in Ontario, that provides a simple and clear way for community members to contribute their knowledge, expertise and constructive criticism about accessibility in this province.

The Community Platform would:

  • collect and make accessibility resources and tools easily available
  • share training and education
  • make it possible for community members to monitor and review how organizations are doing in meeting the requirements
  • empower communities to organize events and activities that support accessibility
  • showcase and share good examples of accessible practices
  • collect and showcase data on various economic and social aspects of disability

The Community Platform must be an open online infrastructure that is easy to get into, easy to use and easy to navigate. It would allow any community member to pool, share and review a large variety of resources that are helpful in implementing the qualifying methods. These resources might include training modules, software tools, evaluation tools, design tools, reusable software components, helpful example practices, examples of contract language for procurement contracts, examples of job description language and many other resources.

The platform would also provide a means for community members to constructively review the resources. Community members would be able to identify gaps in resources, and these gaps would be disseminated publicly to potential innovators and resource producers. The Community Platform will learn from similar initiatives to avoid the pitfalls involved in keeping resources up-to-date and usable by a large diversity of individuals and organizations. Financial support would be needed to maintain the infrastructure and keep the various resources relevant and up-to-date.

Compliance

Clearly, compliance will have to be an important part of any successful accessibility ecosystem. The question, then, is how do we enforce and ensure proper compliance? Before making a more definitive recommendation, the committee would like to ask the public for input on how compliance might work, informed by its discussion on this topic summarized below:

The committee had an in-depth discussion of how compliance might work in phase 2. It was agreed that a reasoned, measured approach that rewards good actors and addresses bad behaviour is critical. In addition, greater accountability of leadership was a recurring theme. The committee also discussed greater connections between government bodies/ministries to enable government to be a better leader and using a greater spectrum of compliance measures. Some questions that came up were:

  • What is the right way to focus on organizations that want to do this right and actively build models that work well?
  • How do you evolve the current approach to compliance in order to encourage organizations to participate in this ecosystem, using a combination of both incentives and disincentives?
    • examples of incentives include grants, loans, tax benefits and public recognition of success
    • examples of disincentives include fines, levies to cover the cost of accessibility, surcharges and naming non-compliant organizations using social media
  • How best do you highlight the benefits of proactively investing in the integration of emerging technologies? How should we define emerging technology?

How is the new model better?

There are several characteristics of the Accessibility Ecosystem that set it apart. It is a more aspirational system, focusing as it does on what is important and good about accessibility, rather than simply emphasizing that it is an obligation. It is also a more inclusive system, not just inviting but actually relying on input from the public and from stakeholders, including those organizations obligated to meet accessibility requirements. Finally, it is designed to evolve and adapt as technology and attitudes change around it. Specifically, the new model will speed progress toward an accessible and inclusive Ontario because:

  • the Trusted Authority will intervene when new barriers arise
  • the Trusted Authority will integrate accessibility into the foundation before barriers are created
  • the Trusted Authority will be able to represent accessibility and inclusive design at technical and policy planning tables, to integrate inclusive design considerations from the start
  • efforts to produce services and resources that address accessibility, which are currently fragmented, will be coordinated and strategically channeled
  • new and current contributors to the goal of accessibility will be provided with productive ways to participate
  • the Trusted Authority will have the opportunity to provide a more comprehensive set of qualifying methods to address more of the barriers experienced by all persons with disabilities in Ontario
  • innovative practices that improve accessibility for people with disabilities will be showcased, rewarded and even adopted as qualifying methods
  • the Trusted Authority be able to maintain the momentum of accessibility efforts across political terms

Cost, funding and sustainability

Reports such as the Releasing Constraints report led by the Martin Prosperity Institute show that public investment in accessibility is one of the most economically rewarding investments of public dollars. By establishing a locus of expertise in accessibility, Ontario gains recognition as a global leader in meeting the growing demand for accessibility expertise and innovation, and achieves unprecedented gains in prosperity. This leadership potential has not been fully realized in the current act framework, but the Accessibility Ecosystem would change that.

The Community Platform would serve to reduce redundancy and significantly improve the effectiveness and efficiency of accessibility efforts. The Community Platform is also structured in such a way that while the infrastructure would be maintained through public funding, the resources, tools, training and review would be contributed by the community at large for mutual benefit. Support for the Trusted Authority and the Community Platform could be shared by multiple jurisdictions across Canada, including other provinces and the federal government. Other jurisdictions have expressed interest in collaborating and sharing these services.

Glossary

Qualifying methods

A means of meeting a Functional Accessibility Requirement for a type of service or product that is sanctioned by the Trusted Authority. Qualifying methods can refer to specific technologies and formats, and the tools and resources needed to employ these methods would be available in the Community Platform.

Participating organizations

Organizations within Ontario, including organizations obligated by the act, previously referred to as “obligated organizations.” The renaming recognizes that a role of all organizations in Ontario is to participate in promoting and advancing accessibility for their own benefit and the benefit of Ontario as a whole.

Platform

An online service that connects people who need something with resources or people that meet those needs. The platform provides a place to pool shared resources and tools, attach descriptions, including constructive criticism of the resources and tools. Platforms have points of entry suited to the different users and contributors of the platform.

Alternative access systems

Computer-based technology comes with a standard set of devices to interact with the technology, such as keyboards and displays. People may not be able to use these standard devices. Alternative access systems replace or augment these standard devices.

Appendix A: Committee membership

Information and Communications Standards Development Committee

Voting members

  • Rich Donovan (Chair)
  • Kim Adeney
  • David Berman
  • David Best
  • Louise Bray
  • Jennifer Cowan
  • Pina D’Intino
  • Louie DiPalma
  • Robert Gaunt
  • Gary Malkowski
  • Chantal Perreault
  • James Roots
  • Kevin Shaw
  • Jutta Treviranus
  • Diane Wagner
  • Richard Watters

Non-voting members

  • Kate Acs
  • Michele Babin
  • Adam Haviaras
  • Kathy McLachlan

Resigned

  • Jessica Gabriel
  • Ben Williamson
  • Matthieu Vachon

Digital Inclusion Technical Subcommittee

Members

  • Jutta Treviranus (Lead)
  • David Berman
  • Pina D’Intino
  • Anne Jackson
  • Dan Shire
  • Aidan Tierney
  • George Zamfir

Appendix B: Functional Accessibility Requirements (FARs)

The following is a draft of the proposed requirements that would constitute one part of the laws. These requirements would be directly linked to qualifying methods for meeting the requirements (provided by the Trusted Authority), and then to tools and resources needed to use the methods (provided by the Community Platform).

Where visual modes of presentation are provided:

  • at least one configuration must be provided that does not require vision
  • visual presentation must be adjustable to support limited vision and/or visual perception or processing (magnification, contrast, spacing, visual emphasis, layout)
  • at least one configuration must convey information without dependence on colour distinction
  • visual presentation that triggers photosensitive seizures must be avoided
  • it must be possible to render the presentation in alternative formats, including tactile formats

Where auditory modes of presentation are provided:

  • at least one configuration must be provided that does not require hearing (captions and sign language)
  • audio presentation must be adjustable to support limited hearing and/or auditory processing (volume, reduced background noise)
  • it must be possible to render the presentation in alternative formats, including tactile formats

Where speech is required to operate a function:

  • at least one configuration must be provided that does not require speech

Where manual dexterity is required for operation:

  • the opportunity to use alternative modes of operation must be provided
  • at least one mode of operation must be provided that enables operation through actions that do not involve fine motor control. These would include path dependant gestures, pinching, twisting of the wrist, tight grasping or simultaneous manual actions (for example, one-handed operation)

Where hand strength is required for operation:

  • at least one alternative mode of operation must be provided that does not require hand strength

Where operation requires reach:

  • operational elements must be within reach of all users

Where memorization is required for use:

  • at least one configuration must provide memory supports or eliminate the demand on memorization or accurate recall (unless the purpose is to teach or test memorization)

Where text literacy is required for use:

  • at least one configuration must provide literacy supports or eliminate the demand for text literacy (for example, text-to-speech, pictorial representation)
  • at least one configuration must provide simple language (unless the purpose is to teach or test text literacy where a different level of literacy is required). Simple language means the literacy level of Grade 3.

Where extended attention is required for use:

  • at least one configuration must reduce demand on attention or enable use with limited attention

Where operation has time limits:

  • at least one configuration must enable extension or elimination of time limits

Where controlled focus is required for use:

  • at least one configuration must provide support for focus or eliminate demand on controlled focus

Where specific sequencing of steps for operation is required:

  • at least one configuration must provide support for sequencing steps, or eliminate the demand for specific sequencing of operation steps (unless the purpose is to teach or test accurate sequencing)

Where abstract thinking is required:

  • at least one configuration must reduce demand for understanding abstractions such as acronyms, allegory and metaphor (unless the purpose is to teach or test abstract thinking)

Where accuracy of input is required:

  • a simple undo must be available

Where biometrics are employed:

  • alternative methods of identification must be made available

Appendix C: Definitions and resources

Relevant to all recommendations:

User: Someone who uses a product, machine or service.

Relevant to recommendation 13

United States Access Board definition of web page

A non-embedded resource obtained from a single Universal Resource Identifier (URI) using HyperText Transfer Protocol (HTTP) plus any other resources that are provided for the rendering, retrieval and presentation of content.

European Union Web Accessibility Directive scope:

  1. In order to improve the functioning of the internal market, this directive aims to approximate the laws, regulations and administrative provisions of the member states relating to the accessibility requirements of the websites and mobile applications of public sector bodies, thereby enabling those websites and mobile applications to be more accessible to users, in particular to persons with disabilities.
  2. This directive lays down the rules requiring member states to ensure that websites, independently of the device used for access thereto, and mobile applications of public sector bodies meet the accessibility requirements set out in Article 4.

United Nations Convention language:

  1. States Parties shall also take appropriate measures:(g) To promote access for persons with disabilities to new information and communications technologies and systems, including the internet.

Relevant to recommendation 14

Alternative access systems

Computer-based technology comes with a standard set of devices to interact with the technology, such as keyboards and displays. People may not be able to use these standard devices. Alternative access systems replace or augment these standard devices.

Relevant to recommendation 17

Ontario Human Rights Code (the Code) “Undue Hardship” terminology

Relevant to recommendation 26

Ontario Human Rights Code “Policy on accessible education for students with disabilities”

Relevant to recommendation 27

Public feedback answers related to the question Which types of organizations should be included in the definition of formal education?:

Note: The survey answers below are extracted from survey responses:

  1. The term ‘formal’ education or training should be defined as stated above (for example, education or training that results in a certificate or other documentation) and the requirement would apply to any organizations that provide that type of education or training.
  2. Any that provide formal education or training.
  3. Any organization that would be giving a certification at the end of the training course.
  4. Tutoring organizations, recreational learning programs such as art, music, physical activity etc.
  5. Educational institutions.
  6. Yes but some agencies do not have the resources to do this. It must be funded.
  7. Everyone.
  8. Private Sector Organizations that provide (paid for) training to externa! clients. Public and Non-Profit organization whose mandate it is to provide training.
  9. University, public schools, private/board schools, workplace education training, broadcasting networks (news), city/town governments.
  10. Any time someone is enrolling as a student or paying for training.
  11. Institutions that issue certifications and designations, along with online training sessions.
  12. Public, private and non- profit.
  13. All.
  14. All.
  15. All businesses and companies, public or private, all not-for-profit companies, schools, colleges, universities, private schools.
  16. It should include all publicly funded education and all paid education.
  17. Would not recommend using the type of organization but would recommend looking at the type or frequency of the training that is being provided. Organizations that have a dedicated training and education dept that do regular training external to their organization should be considered.
  18. Anything that leads to a certification.

Infographics

Frame 1: Accessibility Ecosystem

Frame 1: View a larger version of this infographic (PDF). Read the text version below.

A diagram representing the Accessibility Ecosystem using the visual analogy of a sailing ship in the water.

Introductory text

From obligation to participation: The AODA Accessibility Ecosystem is like a ship in an unpredictable and changing global and technical context. The laws provide the compass, the Trusted Authority steers the course, and the community uses the Community Hub to provide the ideas, tools and resources needed to make the journey.

Description of diagram

The sails of the ship are being blown by wind representing culture change and innovation.

The water has a shark fin representing barriers and fish jumping out of the water representing opportunities.

The ship represents the Ontario community and contains the three parts of the Accessibility Ecosystem: the Accessibility Law, the Trusted Authority and the Community Hub.

The Accessibility Law and Trusted Authority are two separate parts connected by a double helix that has the following phrases printed on it: “Needed Adjustments”, “How to Achieve It” and “What Must Be Achieved”. The Community Hub sits beside Trusted Authority outside the helix with arrows pointing into the helix.

Subtext for the three parts of the Ecosystem further explains each of the Ecosystem’s part. This subtext is as follows:

Accessibility Law
Measures that bring about long-term culture change
Functional accessibility requirements that remain constant
Regulating overall process

Trusted Authority
Ensuring tools and resources are available
Responding to changes in context
Retiring outdated methods
Qualifying innovative methods

Community Hub
Training
Community feedback and monitoring
Pooled resources and tools
Research and guidance
Innovative approaches to addressing barriers

Frame 2: Accessibility Ecosystem

Frame 2: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 1 is lightened with further descriptions of the three parts of the Accessibility Ecosystem layered on top.

Introductory text

There are three important parts in the Accessibility Ecosystem: Laws, Trusted Authority and Community Hub.

Ecosystem parts descriptions

Accessibility Law
The Law is the compass that keeps the ship on course. The law achieves an accessible community and maintains rules about the structure of the overall ecosystem.

Trusted Authority
The Trusted Authority provides directions to steer the course. The Trusted Authority must keep a careful watch for new barriers, opportunities and changes in technology trends and adjust directions in response to these changes.

Community Hub
The Community Hub engages everyone in the community including the general public, people with lived experience of disability, and participating organizations. The Community Hub provides the ideas and resources needed to progress forward.

Frame 3: Accessibility Ecosystem

Frame 3: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 2 (Frame 1 lightened) with even further descriptions of the three parts of the Accessibility Ecosystem layered on top.

Introductory text

Each of the three parts plays an important role in the ecosystem. They rely on each other to be successful.

Ecosystem parts descriptions

Accessibility Law
The laws lay out the functional accessibility requirements and provide regulations to bring about the needed culture change. The laws are the most constant.

Trusted Authority
Participating Organizations and community members can propose innovative new ways to meet the Functional Accessibility Requirements. The Trusted Authority is responsible for keeping the qualifying methods for meeting Functional Accessibility Requirements up-to-date, understandable and do-able. This requires the support of the Community Hub.

Community Hub
Everyone in the community has a role to play and can benefit from participating in the community effort. The Community Hub is the place where new ideas, tools, resources, training, reviews and constructive feedback is gathered and shared.

Frame 4: Accessibility Ecosystem

Frame 4: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 1 is darkened. Layered on top of the darkened diagram is a circle placed in the front part of the ship within the Ontario community. The circle represents Participating Organizations. Four lines with arrows extend out of the Participating Organization circle. Each line has a question attached to it with the arrow pointing to an answer within the ecosystem.

The questions and answers are as follows:

How can I make my services accessible?
Arrow points to Accessibility Law.
A second line with an arrow extends out of the question through the Trusted Authority and back to Participating Organizations.

How can I qualify my new method?
Arrow points to Trusted Authority: Qualifying innovative methods.

Where can I learn more?
Arrow points to Community Hub: Training.

What tools are there to help?
Arrow points to Community Hub: Pooled resources and tools.

Frame 5: Accessibility Ecosystem

Frame 5: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 4 (Frame 3 darkened). Layered on top of the diagram are two circles placed in the front part of the ship within the Ontario community. The circles represent the Public and Individuals with Disabilities. Three lines with arrows extend out of the Public circle and one line extends out of the Individuals with Disabilities circle. Each line has a question attached to it with the arrow pointing to an answer within the ecosystem.

The Public questions and answers are as follows:

How can I participate in drafting the laws?
Arrow points to Accessibility Law.

How can I propose new methods?
Arrow points to Trusted Authority: Qualifying innovative methods.

How can I provide feedback?
Arrow points to Trusted Authority.

The Individuals with Disabilities question and answer is:

How can I contribute to resources?
Arrow points to Community Hub: Pooled resources and tools.

Frame 6: trusted authority process

Frame 6: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Trusted Authority process supported by a visual design that includes line drawings of a variety of people with talk bubbles containing descriptions of who they, as the Trusted Authority, are. The talk bubbles include:

We have the power to:

  1. continuously update the qualifying methods
  2. review innovative proposed new methods as alternatives or additions to existing methods
  3. clarify and rule on disputes regarding the regulations

We have inclusive representation and the power to consult with:

  1. external subject matter experts
  2. additional individuals with lived experience
  3. representative organizations

We support the law, but are independent of partisan influence.
We link the law directly to qualifying methods supported by tools, resources and training.
We bridge political terms.

We are the Trusted Authority
The Trusted Authority is responsible for keeping the qualifying methods for meeting Functional Accessibility Requirements up-to-date, understandable and do-able. This requires the support of the Community Hub. Participating Organizations and community members can propose innovative new ways to meet the Functional Accessibility Requirements.

Frame 7: participating organizations process

Frame 7: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Participating Organizations process supported by a visual design that includes line drawings of a variety of people and talk bubbles containing questions and answers.

The questions and answers are as follows:

Question: How can I connect with potential customers with lived experience who can provide feedback?
Answer: Through community hub forums

Question: We have created tools and resources for the qualifying method, how do we share it?
Answer: Share in community hub, (make sure they’re referenced)

Question: Where can I learn more?
Answer: In the Community hub for training, education and exemplars

Question: Who has expertise and experience to help me?
Answer: Visit directory with reviews

Question: We found an innovative way to meet the functional accessibility requirement, will it qualify?
Answer: Vet with trusted authority

Question: What tools are there to help?
Answer: Access community hub tools and reviews

Question: Here are the services I provide; how do I make them accessible?
Answer: Trusted Authority provides relevant FARs and qualifying methods

We are Participating Organizations:
Participating Organizations are organizations operating in Ontario that are obligated by the Law. The Accessibility Ecosystem enables these organizations to participate in advancing accessibility in Ontario and to contribute innovative approaches. All organizations benefit from a more accessible Ontario.

Frame 8: shared responsibility and shared benefit process

Frame 8: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Community and Community Hub: Shared Responsibility and Shared Benefit process supported by a diagram that includes line drawings of a variety of people around a helix.

The left side of the helix has the following phrases:
Provide constructive feedback
Help develop training, tools and resources
Find new ways to address barriers
Create innovative inclusive technologies and practices
Help identify barriers

The right side of the helix has the following phrases:
Greater innovation
Greater prosperity
Ontario as a global leader
Participation and contributions by all Ontarians

We are the Community and the Community Hub
The Community Hub is the most participatory of the ecosystem and supports engagement by everyone in the community including people from the government, obligated organizations, and diverse individuals inclusive of those with disabilities.



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