Ontario Human Rights Commission Again Commendably Raises Human Rights Concerns with Ontario’s Critical Care Triage Plans, While the Ontario College of Physicians And surgeons Appears to Wrongly — Green Light Those Plans The AODA Alliance Responds!


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

April 23, 2021

^ SUMMARY

Things are moving fast on the terrifying critical care triage front. The AODA Alliance and the disability organizations with whom we are collaborating are trying to stay ahead of a potential tidal wave facing us all.

^What’s New?

1. We understand that within the past two days, the Ontario College of Physicians and Surgeons wrote all Ontario Physicians. If our information is correct,, the College gave doctors the green light, if the Ontario Government directs it, to refuse or withdraw critical care in accordance with the critical care triage protocol which we have repeatedly blasted as disability-discriminatory.

We have just written the College of Physicians to ask for confirmation of this. If it is accurate, then we strongly object to this action, and ask the College to rescind it. The College is the self-governing professional body that licenses and regulates physicians in Ontario. As our letter, set out below, explains, the College never got our input on our serious disability-related concerns about Ontario’s disability-discriminatory critical care triage protocol and plans.

2. On this same front, today the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, has commendably issued another public statement on this critical care triage issue. We set it out below, as well. She reiterates the Ontario Human Rights Commission’s serious concerns with the Ontario Government’s critical care triage plans.

3. Yesterday our April 8, 2021 news release raised concerns about the possibility that the Ford Government might agree in advance to indemnify doctors if they deny critical care to a patient who needs it, should critical care triage be directed in Ontario. Beyond that news release, there are so many ramifications if the Government takes this step.

For one thing, it will implicate the Government directly in any patient’s death that results from critical care triage. We would argue that that is the case, even without any indemnification arrangement with doctors. However, an indemnification arrangement cements it even more.

Will the Government give doctors a blank check in advance, paying all their damages claims and paying for their defence lawyers, no matter how a doctor acts when deciding who lives and who dies? Why is the Government not removing the flagrant disability discrimination from the January 13, 2021 Critical Care Triage Protocol, both because it is wrong, and because the taxpayer should not be giving physicians a guaranteed advanced blank check for such human rights violations. It certainly seems that the public should have some say in this life and death issue.

For more background
1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.

2. Ontario’s January 13, 2021 triage protocol.

3. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance’s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.

5. 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

^April 9, 2021 Letter from the AODA Alliance to the Registrar and CEO of the Ontario College of Physicians and Surgeons

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/

Dr. Nancy Whitmore, Registrar and CEO
Via email: [email protected]; [email protected]

College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

Dear Dr. Whitmore,

Re: Possibility of Rationing or Triage of Critical Care in Ontario

We write to ask about the position of the Ontario College of Physicians and Surgeons on Ontario’s plans for critical care triage if COVID-19 overwhelms hospitals, requiring rationing of critical care. We are especially concerned that those plans include flagrant disability discrimination, a lack of required due process for vulnerable patients whose lives are at stake, and a troubling failure to respect basic legal requirements.

We understand that the College of Physicians and Surgeons appears to have sent an email to all licensed physicians in Ontario within the past 48 hours on the topic of critical care triage. It is our understanding that this email states in material part as follows:

“Critical Care Triage

If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?

The College appreciates how challenging the pandemic has and continues to be for physicians working in critical care capacities. If the pandemic worsens and intensive care admissions increase, physicians may be faced with very difficult decisions regarding the allocation of scarce resources. It is essential that physicians be supported in making the extraordinary decisions they may be faced with and that the public trust how those decisions are being made.

The College notes that the provincial government has enabled a centralized authority, its command tables, to manage, oversee and co-ordinate the implementation of appropriate critical care triage tools should this become necessary. While only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to re-allocate those resources to another patient, the College recognizes that issues concerning withholding potentially life-saving or life-sustaining treatments may also arise.

Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols. Transparent and sensitive communication with patients’ families will continue to be of paramount importance in these situations.”

Can you please confirm whether this is what the College has written to all Ontario doctors? If it is not, please let us know what the College has directed physicians on this topic.

If this or words to like effect are what the College has directed, we ask that the College immediately and publicly rescind it. It fails to take into account or even acknowledge the clear disability discrimination and denials of due process in Ontario’s critical care triage plans, which are contrary to the Ontario Human Rights Code and the Charter of Rights. Numerous serious human rights concerns with Ontario’s critical care triage plans have been repeatedly and publicly voiced by respected disability organizations like the AODA Alliance, the ARCH Disability Law Centre and others, as well as by the Ontario Human Rights Commission. Our efforts on this issue are extensively documented on our website’s health care page.

Before the College gives the Ontario Government’s critical care triage plans an official regulatory stamp of approval, it should, at a minimum, speak with those of us who are raising such serious concerns, and effectively take our concerns into account. We most recently crystalized many of those concerns in the AODA Alliance’s February 25, 2021 report on Ontario’s critical care triage plans.

We regret that the Ontario Health Ministry and Minister has not met with us, or even responded to our detailed correspondence on point. We have been relegated to the Government’s external advisory Bioethics Table. That Table makes no decisions, and has wrongly rejected key concerns that disability advocates have raised, too often without any explanation. After August 31, 2020, we did not had any meetings with that Bioethics Table except one on December 17, 2020. Our input at that last meeting appears to have been largely if not totally rejected, again, without reasons.

From the content of the Colleges statement which we quote above, if correct, it would appear that the Government and those acting on its behalf must have had direct content with the College in this connection. Can you please let us know what specific input, if any, the College itself has received regarding our disability concerns, and what input, if any, the College gave the Ontario Government about disability concerns with the critical care triage plans.

Making this situation worse, frontline doctors and hospitals have been urged to rely on the triage protocol, in a seriously flawed and misleading January, 23 2021 on-line webinar. For example, that webinar told doctors that the Ontario Human Rights Commission was consulted on this protocol, but did not tell them that the Commission and community groups have serious human rights objections to it.

It is our position that physicians who act pursuant to Ontario’s critical care triage plan and protocol do so at their peril. We share the view that there must be public trust and transparency in this issue. It has to date been mired in protracted secrecy as well as questionable public statements by the Government and those who have publicly defended Ontario’s critical care triage plans.

The College of Physicians and Surgeons of Ontario is required to regulate physicians in the public interest, protecting patients. The College should take a position on this critical care triage issue that is fully respectful of the rights and needs of vulnerable patients whose very lives are at stake during critical care triage.

We would welcome the chance to meet to provide the College with the input and information it should consider to take an informed and appropriate position on this issue.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance Twitter: @davidlepofsky

cc:
Premier Doug Ford [email protected]
Christine Elliott, Minister of Health, [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]

^April 9, 2021 Public Statement by Chief Commissioner of the Ontario Human Rights Commission

Hello,

Today, the Ontario Human Rights Commission issued the following statement by Chief Commissioner Ena Chadha on human rights concerns with COVID-19 critical care triage:

April 9, 2021

OHRC statement on urgent human rights concerns with critical care triage

Unfortunately, Ontario is in its third wave of COVID-19.During its April 7 press conference to announce a stay-at-home order, the Ontario government emphasized that ICU admissions are increasing faster than the “worst-case scenario” predicted by their experts. The government also said it has not sanctioned any triage protocol should doctors be forced to decide who gets access to critical care and who does not.And last night, Ontario Health ordered hospitals to postpone non-urgent surgeries because of the growing caseload of COVID-19 patients.

The Ontario Human Rights Commission (OHRC) urgently calls on the government to clarify the statusof the Adult Critical Care Clinical Emergency Standard of Care for Major Surge protocol (the Emergency Standard of Care) that was circulated to hospitals in January. The governmentmust also confirmthat theHealth Care Consent Actprevails to protect the rights of patients and families at this time. Further, government should require hospitals to promptly collect data on vulnerable groups most affected by the pandemic, including older people, people with disabilities, Indigenous peoples and Black and other racialized people admitted to ICUs and whenever critical care is withheld or withdrawn.

Over the past year, the OHRC has repeatedly raised concerns about various versions of the triage protocol and the Emergency Standard of Care, including writing to the government last November and December.

On March 1, the OHRC highlighted concerns that the Emergency Standard of Care document and supplementary materials (such as an online short-term mortality risk calculator) included potentially discriminatory content, and called on the government to not implement Emergency Standard of Care without sufficient public input or consultation. The OHRC alsocalledon the government to publicly release and consult human rights stakeholders, including the OHRC, on the latest versions of the proposed critical care triage framework to make sure that this document and the Emergency Standard of Care, were consistent with and uphold the OntarioHuman Rights Code. We asked the government to do this before a potential third wave overwhelmed Ontario’s health-care system. Regrettably, that did not happen.

As the pandemic continues, the need to reflect human rights principles and respect human rights obligations in every response is greater than ever before.

We must ensurethat vulnerable groups disproportionately affected by the pandemic are not further disadvantaged by measures taken to manage critical care services in the days and weeks to come.

Ena Chadha
Chief Commissioner




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Danger of Disability Discrimination in Access to Life-Saving Critical Medical Care Grows as Overloaded Ontario Hospitals Near the Breaking Point


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE

April 8, 2021 Toronto: The newest wave of COVID is overloading Ontario intensive care units, triggering yesterday’s new provincial lockdown. The day looms dangerously closer when life-saving critical care in Ontario hospitals will be rationed or “triaged”. Yet Ontario’s mishandled critical care triage plans are an impending disaster, leading some people with disabilities to fear going to hospital. Serious concerns have been raised by disability organizations and the Ontario Human Rights Commission.

One year ago today, in an open letter to Premier Ford, over 200 community organizations first sounded the alarm that patients with disabilities will suffer disability discrimination if critical care is rationed under the Ford Government’s earlier secret triage protocol. One year later, Ford still hasn’t remove disability discrimination from the subsequent, revised January 13, 2021 critical care triage protocol that was sent to all hospitals.

Here are two examples of flagrant disability discrimination contrary to the Ontario Human Rights Code: Ontario’s January 13, 2021 critical care triage protocol improperly ranks a patient’s access to life-saving critical care lower if they are over 65, have a progressive disease, and cannot perform some or all of eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. As well, a cancer patient gets lower priority for critical care if they are “Capable of only limited selfcare; confined to bed or chair more than 50% of waking hours” or if they are “Completely disabled and cannot carry out any self-care; totally confined to bed or chair”.

Under Ontario’s critical care triage protocol, each triage doctor can end up being a law unto themselves. Ontario hospitals have been quietly urged to conduct drills or simulations of how they’d choose who lives and who dies if critical care triage is ordered. This is all secret from the public. The public has a right to know whom hospitals are choosing to refuse critical care in those simulations, and how differently the same case is decided from hospital to hospital.

Ontario’s critical care triage plan does not provide patients whose life is at risk with much-needed due process and procedural fairness. Making this even worse, the Ford Government refuses to answer if critical care triage directions have been sent to ambulances, e.g. restricting which patients should be resuscitated before being taken to hospital.

There are other serious problems with Ford’s plans. The Government cannot direct which patients live or die by simply sending a memo to hospitals. Any triage protocol must be clearly mandated by valid legislation.

“Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a lawfully mandated triage protocol that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities. They have already unfairly and disproportionately suffered from COVID-19 and from the pandemic’s worst hardships,” said David Lepofsky, Chair of the non-partisan AODA Alliance, one of the disability organizations sounding the triage alarm. “Doctors and hospitals will proceed at their peril if they use Ontario’s disability-discriminatory critical care triage protocol, which the Government has never made public, but which is revealed to all on the AODA Alliance’s website.”

A deeply-troubling January 23, 2021 online video tries to sell doctors on using the January 13, 2021 Critical Care Triage Protocol. It wrongly aims to lead doctors to think that they need not worry about inequities or the risk of legal consequences, while concealing from them that protocol’s serious human rights problems.

Some physicians have wrongly pressured the Ford Government to suspend the Health Care Consent Act so that a doctor can evict a patient from critical care who is already receiving critical care, without that patient’s consent. We oppose this and dispute that Ontario can do this. Ford hasn’t ruled this option out. Ford would be tap-dancing in a constitutional minefield to try it.

It is worrisome that Ontario is reportedly considering granting doctors some sort of blank cheque or indemnification for triage decisions to refuse a patient critical care they need. This could involve the Government paying any claims that a doctor or hospital faces for denying life-saving critical care to a patient who needs it. Such indemnification would wrongly give supreme priority to the Government protecting the income of doctors over protecting the lives of highly-vulnerable patients. Doctors should not be given immunity from the legal consequences of actions known to endanger a patient’s life. The taxpayer should not be forced to subsidize well-resourced medical insurance companies and doctors’ legal defence lawyers.

“The Ford Government’s mishandling of the critical care triage issue from the start has been plagued by harmful secrecy, evasiveness and a lack of candor,” said Lepofsky. “The Government must now rescind and fix its discriminatory January 13, 2021 critical care triage protocol, must answer our eight unanswered letters (listed below), and must directly consult the public on this issue.”

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

For more background
1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.

2. Ontario’s January 13, 2021 triage protocol.

3. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance’s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.

5. 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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As the COVID-19 Pandemic Again Worsens, Here’s Additional Media Coverage of the Ford Government’s Unwarranted Secrecy Over Ontario’s Seriously Flawed Critical Care Triage Protocol and Plans


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

April 1, 2021

SUMMARY

1. The News

The new and much more contagious COVID-19 variants are rapidly spreading. The media reports that Ontario hospital Intensive Care Units have more COVID-19 patients than ever. The Ford Government is understandably imposing more lock-down measures to stem the spread of the pandemic.

This all means that the risk of Ontario having to resort to rationing critical care, also called critical care triage, grows ever more imminent. Yet in contrast to regular public reports by the Ford Government on its plans for distributing the COVID-19 vaccine, the Government’s inexcusable secrecy over its dangerous critical care triage plans and protocol remains omnipresent. Below we set out two new media reports on this issue. We offer more reflections on this life-and-death story, one that deserves far more attention from other news organizations.

1. A CTV News online story that was posted on March 30, 2021 on the critical care triage issue. It also ran on the CTV Toronto 6 pm news on March 31, 2021.

2. A guest column on the critical care triage issue that ran in the March 4, 2021 Globe and Mail.

2. Some Reflections on the News

1. Amidst the recent coverage, and not-so-recent coverage, which media organizations are strikingly absent from the scene? Prominent among them is the CBC. CBC’s Ontario-based radio and TV local news programs have included NOTHING on the disability concerns with Ontario’s critical care triage plans in months. Yet Canada’s public broadcaster claims to have a strong commitment to inclusiveness and diversity in its coverage. We will later have more to say about this.

2. In the CTV news report set out below, attention focuses on the controversial online calculator which the AODA Alliance revealed to the public earlier this year. It was secretly created to help doctors and hospitals decide who will be refused life-saving critical care, if critical care triage becomes necessary.

The AODA Alliance’s February 25, 2021 report on Ontario’s seriously-problematic critical care triage plans made public the existence of this online life-and-death calculator that has been provided to Ontario hospitals and doctors. In the following excerpt from that report, the AODA Alliance also identified the very serious problems with this calculator. The AODA Alliances February 25, 2021 report states

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr. Downar also earlier said during that webinar:

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

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

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

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

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

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

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

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

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

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

CTV’s March 30, 2021 report quotes Dr. Andrea Frolic (a bioethicist, not a physician) as defending the calculator. She has been quoted more than once in the role of defending the Ford Government’s critical care triage plans. The CTV report states:

The calculator, to be very clear, is not driving the clinical decision. The calculator simply helps the physician at the bedside to check the accuracy of the clinical judgment, said Dr. Andrea Frolic of Hamilton Health Sciences.

That claim is contradicted by the calculator itself and the information about it, set out above, that the AODA Alliance’s February 25, 2021 report provides.

The CTV report later quotes Dr. Frolic again as defending the disability-discriminatory content of the online life-and-death calculator. The news report states:

All of those criteria were pulled from global medical literature designed to determine the chance that someone would survive a year, Dr. Frolic said.

Great pains have been taken to ensure that equality, that any patient with any diagnosis gets the same assessment applied, to mitigate any potential bias, she said.

Frolic’s remarks are riddled with fatal flaws.

First, even if it were assumed that some studies purportedly point to using disability-discriminatory criteria (a proposition needing much further public inquiry) this would not mean that it thereby justifies disability discrimination that is contrary to the Ontario Human Rights Code and the Charter of Rights. By analogy, had there been a study that showed that a patient’s race or sex made them more likely to die within a year, that would not justify using a patient’s race or sex in the online life-and-death calculator. To be clear, that calculator does not include race or sex, nor are we saying that anyone has claimed that medical literature would support that or that racist or sexist criteria should be used. However, the point remains the same. Such racial, gender or disability discrimination is simply not permitted.

Second, Dr. Frolic says that the aim of this calculator is to treat all the patients the same. In order to achieve equality. Yet, the Supreme Court of Canada has made it clear for decades that same treatment can itself create discrimination. For people with disabilities, it often does. It would be same treatment to tell all job applicants that they must climb a flight of stairs to get into a building to attend a job interview. Yet for people using a wheelchair, that same treatment is clear disability discrimination.

Dr. Frolic has been told this. She served on the Ontario Government’s advisory Bioethics Table. Last summer, she took active part in meetings with disability advocates including AODA Alliance Chair David Lepofsky. Those advocates explained more than once that same treatment can constitute a denial of equality.

We emphasize that Dr. Frolic is not the issue. The Ford Government’s approach to critical care triage is the issue. However, Dr. Frolic is one of the few people who have served in the role of defending the Government on this issue, as the Government remains in hiding.

3. As noted earlier, below is also set out a guest column in the March 4, 2021 Globe and Mail by bioethicist ARTHUR SCHAFER. He makes a compelling argument why it is exceedingly harmful and dangerous for the Ford Government to keep Ontario’s plans for critical care triage shrouded in secrecy. We repeat here that if a member of the public wants to read those plans, it is the AODA Alliance website and not the Government’s website to which they must turn.

We take decisive exception to one comment in this Globe and Mail column. It argues:

Quebec, whose triage plan is public, allows doctors to remove patients from life support if their prognosis is poor, thereby freeing up resources for those more likely to benefit. If the goal is to save as many lives as possible, then Quebec’s plan seems ethically preferable to Ontario’s.

Some doctors are pressing the Ford Government to suspend the Health Care Consent Act, so that a doctor would have the power to unilaterally withdraw critical care from a patient already receiving it, even if that patient objects. We have repeatedly pointed out that this raises massive legal and constitutional concerns. As but one consideration, the column’s author might think that to do so could be ethical a view with which we strongly disagree. There is a real risk that it would implicate Canada’s Criminal Code’s homicide provisions.

As of now, there have been an inexcusable 791 days, well over two years, 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. This worsens the festering problems facing patients with disabilities during the COVID-19 pandemic, such as those threatened by the possibility of critical care triage . There are only 3 and ¾ years left for the Ontario Government to lead Ontario to become fully accessible to 2.6 million people with disabilities, as the Accessibility for Ontarians with Disabilities Act requires.

For more background on this issue, check out:

1. The AODA Alliance’s comprehensive February 25, 2021 report on the serious problems with Ontario’s critical care triage and plan.

2. The AODA Alliance’s December 21, 2020 news release on the critical care triage issue.

3. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
4. 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, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

5. 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.

6. 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.

8. 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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CTV Online News March 30, 2021

Originally posted at https://toronto.ctvnews.ca/would-you-be-admitted-to-hospital-amid-a-covid-19-surge-ontario-doctors-have-an-online-calculator-to-help-check-1.5367752 Would you be admitted to hospital amid a COVID-19 surge? Ontario doctors have an online calculator to help check Jon Woodward
Videojournalist, CTV News Toronto
@CTV_Jon
Published Tuesday, March 30, 2021 8:02AM EDT
A health-care worker wearing PPE transports a patient in the dialysis unit at the Humber River Hospital during the COVID-19 pandemic in Toronto on Wednesday, December 9, 2020. THE CANADIAN PRESS/Nathan Denette

TORONTO — An online calculator that would help Ontario doctors decide which patients should be treated and which should be turned away COVID-19 cases overwhelm hospitals is meant to be used as a last resort, says an ethics consultant involved in its design.

The Short-term mortality risk calculation tool takes in age and medical conditions, and outputs scores that can help a doctor determine the likelihood that a patient will survive for a year if treated.

If that threshold is low the bed that could have gone to that patient can be given to someone more likely to survive.

The calculator, to be very clear, is not driving the clinical decision. The calculator simply helps the physician at the bedside to check the accuracy of the clinical judgment, said Dr. Andrea Frolic of Hamilton Health Sciences.

But that hasn’t quelled worries of advocates for people with disabilities, who say that ingrained in the assessment tools it digitizes are biases against people in wheelchairs or people whose life span may not be clear.

The calculator dehumanizes it and makes it falsely seem like it’s a mathematical calculation. It is not, said David Lepofsky of the AODA Alliance, an Ontario disability advocacy group.

He pointed to elements of the ECOG Grade that included a score for Completely disabled; cannot carry on any self-care; totally confined to bed or chair.

People with disabilities are disproportionately exposed to getting COVID, and dying of COVID. It would be a cruel irony if they then faced the risk of being deprioritized in getting access to critical care, Lepofsky said.

The STMR Calculation Tool is a digital expression of the Short Term Mortality Risk Assessment for Critical Illness form that doctors may have to fill out if they are overwhelmed. That form was obtained by CTV News Toronto.

In a Level 1 Triage Scenario, patients with a greater than 80 per cent chance of dying in the next year are turned away. In Level 2, that drops to 50 per cent. In Level 3, patients with just a 30 per cent chance of dying could be turned away.

Among the list of conditions that could meet that criteria are severe trauma, burns, cardiac arrests, metastatic cancers, strokes, and liver failure.

The form includes a line of age greater than 65, and Clinical Frailty Score of greater than seven on a nine-point scale. It cautions doctors that this frailty must be part of a progressive illness, and not an ongoing condition.

All of those criteria were pulled from global medical literature designed to determine the chance that someone would survive a year, Dr. Frolic said.

Great pains have been taken to ensure that equality, that any patient with any diagnosis gets the same assessment applied, to mitigate any potential bias, she said.

It’s not immediately clear who is behind the online calculator. There’s no logo on the website, and a check of its domain registration shows redacted for privacy on many identifying details.

However in the site’s end user license agreement, the site mentions the Hamilton Health Sciences Corporation an agency of Hamilton Health Sciences. That was where the programming was done for the tool, which was commissioned as part of Ontario’s COVID-19 response, said Dr. Frolic.

Ottawa Centre MPP Joel Harden, who is the NDP Critic for accessibility and persons with disabilities, said there had been little public discussion of what end of care life should be.

We have a government operating in secrecy on critical life or death decisions. If the hospitals get overwhelmed the government will not debate out in the open what the criteria should be in rationing lifesaving care, Harden said.

The Ontario Ministry of Health did not return messages left by CTV News Toronto.

Globe and Mail March 4, 2021 / News
OPINION

Keeping Ontario’s triage plan secret is fostering mistrust
By ARTHUR SCHAFER
Founding director of the Centre for Professional and Applied Ethics at the University of Manitoba

The government of Ontario has a secret triage plan for the rationing of essential medical care. If a third wave of COVID-19 overwhelms Ontario’s hospital system, provincial protocols instruct doctors which patients should get priority life-saving treatments.

Although the guidelines have not been published, they reportedly mandate hospital intensivecare units to withhold life support from patients unlikely to survive at least 12 months. Patients already on life support will not have that support withdrawn, no matter how poor their prognosis.

The cabinet hasn’t yet given formal approval to these triage guidelines. Indeed, the Ministry of Health prefers to describe the plan as merely a “framework document” – with the implication that we need not pay too close attention. Nevertheless, the document has been distributed to the province’s hospitals.

Whether we label it a “plan” or something else, is it ethically defensible? Quebec, whose triage plan is public, allows doctors to remove patients from life support if their prognosis is poor, thereby freeing up resources for those more likely to benefit. If the goal is to save as many lives as possible, then Quebec’s plan seems ethically preferable to Ontario’s.

Most people understand that governments must plan in advance how to allocate resources in a public-health emergency. Absent such planning, decisions would have to be made by individual doctors at their patients’ bedside. Doctors would in effect become gatekeepers for life-support technology; however, this role fits uneasily with the principles they imbibed at medical school. “Every life is valuable. Every patient is entitled to appropriate treatment.”

Instead of asking, “Would my patient benefit from admission to the ICU?” the doctor would be required to ask, “Which of my eligible patients will be most likely to benefit? Or which will benefit most?” For doctors to make this kind of life-and-death choice among their eligible patients seems inconsistent with the fundamental principle of the Hippocratic Oath: The life and health of my patient will be my first consideration.

In situations where some patients will likely benefit greatly from an ICU bed, while others will benefit only marginally, traditional physician ethics come under pressure. “First come, first served” doesn’t seem like an ethically defensible moral rule when the patient who came first is unlikely to survive long while the patient who came second has a more favourable prognosis.

Nor does the “first come” principle help when a decision has to be made concerning the withdrawal of life support once it has begun. For these reasons, giving doctors sole discretionary power to withhold or withdraw life support would impose on them a heavy moral and emotional burden. Equally or more important, it would lead to arbitrary and unfair differences in the way patients are treated.

Thus, a consensus has developed. In times of runaway pandemic, every province should have in place a triage plan for the distribution of scarce health care resources. But who should be responsible for establishing the provincial plan? The government of Ontario quietly established an advisory “bioethics table” to recommend guidelines. Unfortunately, the composition of this expert panel is secret, as are its detailed recommendations. The alternatives considered by the panel and its reasoning are also concealed. Media questioning of the government has elicited a promise that there will be future consultations with “stakeholder groups.” The general public is apparently to have no input in the decisionmaking process.

Understandably, all this secrecy has generated public suspicion. People are wondering what is being covered up, or if the plan discriminates against the elderly, people with disabilities or racialized groups. It’s critically important that governments be held accountable. This means that even those who trust in the bona fides of the government should insist that, in a liberal democracy, the public has the right to be fully informed, hear expert discussions and weigh in with its own views.

Sadly, the Ontario government is not alone in its persistent refusal to recognize that secrecy promotes cynicism and distrust. Governments everywhere could learn a lesson from the “death panel” myth about Barack Obama’s Medicare plan. There was nothing in Mr. Obama’s legislation that would have led to individuals being judged as “unworthy of health care,” but millions of Americans were nevertheless misled. Similar myths about the Ford government’s intentions are already circulating.

Openness and transparency promote trust. When exposed to critical scrutiny by an informed public, the Ontario triage plan may come to be seen as reasonable and fair; but continued secrecy will inevitably feed suspicion that the government is concealing something nefarious.

In a time of pandemic, trust is the most precious resource possessed by public-health officials. Once lost, it can be difficult or impossible to regain.




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


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

March 29, 2021

SUMMARY

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

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

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

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

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

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

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

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

We offer four reflections on those reports:

1. The cruel irony has not been lost on many people with disabilities that at the same time as people with disabilities must battle against the life-threatening dangers facing them if Ontario undertakes critical care triage, disability advocates have also been campaigning against Bill C-7, controversial new federal legislation that substantially liberalizes medical assistance in dying. There has been this increased governmental focus on ending the lives of people with disabilities, without comparable governmental efforts to improve the opportunities for living with a disability.

2. As the Government itself hides, Dr. James Downar continues in effect to play the role of the Governments chief defender on this critical care triage issue. He appears indistinguishable from a cabinet ministers spokesperson. He has been credited with being an author, if not the key author, of the January 13, 2021 Critical Care Triage Protocol which embodies seriously harmful disability discrimination. As a member of the Governments advisory Bioethics Table, he was a key player during a series of virtual meetings last summer, where the AODA Alliance and certain other disability advocates and experts voiced concerns in this area.

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

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

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

3. Both Globe and Mail articles report on advocacy by some doctors to be given the power to pull the plug on critical care patients over their objection, taking away critical care they are already receiving, and thereby endangering their life. No one has answered our objection that Ontario cannot authorize this without the doctor running up against Canadas Criminal Code homicide provisions. This piles onto vulnerable people with disabilities yet another danger to their lives, during a pandemic where they have disproportionately been at risk of getting COVID-19and dying from it.

4. The Globe and Mails February 7, 2021 article quotes a bioethicist in defence of the January 13, 2021 Critical Care Triage Protocol, who claims it is designed to protect human rights. The title bioethicist implies great expertise in this area. However, there is cause for concern.

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

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

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Globe and Mail March 29, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-covid-19-surge-could-force-doctors-to-use-online-calculator-to/ Ontario’s COVID-19 triage plan includes online care calculator

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Globe and Mail February 7, 2021

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

News

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

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

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

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

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

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

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

The decision did not affect other provinces.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Lawyer’s Daily February 8, 2021

Originally posted at https://www.thelawyersdaily.ca/articles/24331/research-project-seeks-to-understand-covid-19-justice-barriers-for-people-who-live-with-disabilities Research project seeks to understand COVID-19 justice barriers for people who live with disabilities
Researchers at a western Canada university have embarked on studies into how measures to combat COVID-19 have impacted access to justice for Ontarians with disabilities living in care centres and people with mental disorders in British Columbias prisons and psychiatric facilities.

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

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

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

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

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

[The] purpose of this research to highlight those voices, because this will be a quotative, multidisciplinary research project. We recognize that, throughout this pandemic, the voices of people with disabilities have really be silenced, and it doesnt seem like theyve been prioritized.

Dhand also talked about the controversial emergency triage protocol put together by the province, which would reportedly allow doctors in intensive care units to decide who gets a bed and who doesnt in the event hospitals become overwhelmed by the health crisis.

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

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

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

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

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

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

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

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

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

March 29, 2021

            SUMMARY

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

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

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

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

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

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

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

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

We offer four reflections on those reports:

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

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

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

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

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

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

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

            MORE DETAILS

Globe and Mail March 29, 2021

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

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

By JEFF GRAY

Staff

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 The Globe and Mail February 7, 2021

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

News

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

By JEFF GRAY

Staff

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

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

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

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

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

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

The decision did not affect other provinces.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Lawyer’s Daily February 8, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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


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

Ontario Human Rights Commission Echoes More Serious Concerns March 2, 2021

SUMMARY

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

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

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

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

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

1. Several key points that the AODA Alliance raised at that December 17, 2020 roundtable are set out in greater detail in the AODA Alliance’s unanswered December 17, 2020 letter to the Minister of Health.

2. The overwhelming point that came from the community groups at that roundtable made was that they had not had time to prepare for that rushed meeting, but had serious human rights concerns with the critical care framework we were shown. Since then, no such consultation has been held with community groups like the AODA Alliance by the Government, its Bioethics Table or its Ontario Critical Care COVID Command Centre. This is so even though the Government and its proxies and defenders in the medical world repeatedly claim that consultations are ongoing on the Ontario critical care triage plan.

3. As it turns out, we now know that the Ford Government and its Ontario Critical Care COVID Command Centre had already taken important steps towards its critical care triage plan by the time that the December 17, 2020 roundtable was being held. These steps were likely known to the Bioethics Table participants, but were not revealed to the AODA Alliance and other community groups taking part in that discussion.

For more background, check out:

1. The AODA Alliance’s February 25, 2021 report revealing new serious problems with the Ontario critical care triage plan, and its February 26, 2021 news release on that report.

2. The January 13, 2021 Ontario Critical Care Triage Protocol, which the Government has never revealed, and which we believe is only publicly downloadable from the AODA Alliance website.

3. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliances September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
5. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis. MORE DETAILS

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

The Honourable Christine Elliott
Minister of Health
College Park 5th Floor, 777 Bay Street
Toronto, ON M7A 2J3

Dear Minister Elliott:
RE: Follow-up on critical care triage Ongoing human rights concerns and the need for public consultation
I hope this letter finds you well. Thank you for speaking with me in December 2020 and confirming your commitment to human rights and your interest in ensuring that our stakeholders’ concerns are appropriately heard. As you know, since April 2020, the Ontario Human Rights Commission (OHRC) has voiced the importance of respecting human rights when triaging critical care during the pandemic. The OHRC has sought to promote an equity-sensitive approach that is fair, transparent and founded on human rights principles.
Since last year, the OHRC has called on the Government to publicly release and consult with human rights stakeholders on various iterations of the critical care triage protocol and framework. Throughout this time, the OHRC has undertaken all best efforts to support the COVID-19 Bioethics Table in its work to revise a triage framework that respects human rights.
We are writing to highlight certain issues about the most recent triage-related documents that the Ontario Critical Care COVID-19 Command Centre has disseminated to health-care administrators and, once again, to offer our support to your Ministry in hopes of ensuring that the concerns and interests of human rights stakeholders will be heard.
As you know, last December, the OHRC worked collaboratively with the COVID-19 Bioethics Table to facilitate a consultation with human rights stakeholders on the September 11 version of the proposed triage framework document. The Bioethics Table prepared a summary of the meeting and circulated it to participants. The summary also included an appendix prepared by the OHRC summarizing its recommendations for the Bioethics Table and your Ministry’s consideration.
Early this year, the OHRC obtained a copy of the Emergency Standard of Care dated January 13, 2021. We also obtained copies of related supplementary materials on the Emergency Standard of Care:
Template letters to be sent to patients informing them they will not receive critical care and/or that critical care is being withdrawn without their consent
An online short-term mortality risk calculator with digitized clinical tools to assess mortality
Critical Care Services Ontario’s January 23, 2021, webinar and slide deck to help disseminate the Emergency Standard of Care within the sector.
While the OHRC appreciates that the Emergency Standard of Care refers to human rights principles and obligations in its introduction, we remain concerned about the following issues that we raised earlier:
The reliance on a 12-month predicted mortality timeline is excessive and risks discriminatory biases
The use of clinical assessment tools not validated for critical care triage also risks discriminatory bias
The need to account for the human rights duty to accommodate throughout the decision-making process including when assessing a patient’s predicted mortality
The need to ensure the legal right to due process and transparency for triaging decisions, including an effective mechanism for the right to appeal a decision that disproportionately impacts the right to life of vulnerable groups
The need to ensure appropriate human rights training and guidance for healthcare service providers so that they can implement the standard equitably and effectively.
Further, while the OHRC appreciates that the Emergency Standard of Care is intended to be an evergreen document, we are concerned that this document and supplementary materials (including the online short-term mortality risk calculator) are being shared within the health-care sector with potentially discriminatory content and without sufficient public input or consultation. We are also concerned that the previous March 2020 version of the protocol, which was intended to be rescinded in October 2020, may still be in circulation and relied upon by health-care partners, particularly given something to this effect was noted in the above-cited January 23, 2021, webinar regarding emergency/ambulance services.

Stakeholders including ARCH Disability Law Centre and the AODA Alliance have expressed serious concerns that the government may act on calls for an emergency order to suspend certain provisions of the Health Care Consent Act, allowing doctors to withdraw patients from critical care without their consent, or that of their families or substitute decision-makers, and without independent oversight.
The OHRC understands that granting doctors such decision-making power is an extraordinary measure and one the Government will not take lightly. The OHRC also understands that your Ministry wishes to ensure that human rights stakeholders concerns are properly considered and understood. In light of this, we cannot overstate that even if the Government does not issue an emergency order, the lack of transparency regarding the status of the Emergency Standard of Care, plans regarding next steps and questions regarding due process are causing grave concern among vulnerable groups. We believe these concerns must be addressed immediately, particularly given the existence of new, highly transmissible variants of COVID-19.
The OHRC believes that now is the time to act to make sure that frameworks and protocols for triage decisions that are consistent with the Ontario Human Rights Code are in place before a potential third wave overwhelms Ontario’s health-care system.
We call on the Government to publicly release and consult human rights stakeholders including the OHRC on the latest versions of the proposed triage framework and the Emergency Standard of Care. There is an urgent need to make sure that vulnerable groups who may be disproportionately affected have an opportunity to share their perspectives while there is still time, and before the proposed triage framework and/or Emergency Standard of Care and related materials are finalized. Sincerely,

Ena Chadha, LL.B., LL.M.
Chief Commissioner

cc: Helen Angus, Deputy Minister, Ministry of Health
Matthew Anderson, President and CEO of Ontario Health Jennifer Gibson, Co-Chair, COVID-19 Bioethics Table
Dr. Andrew Baker, Incident Commander, Ontario Critical Care COVID-19 Command Centre Hon. Doug Downey, Attorney General
David Corbett, Deputy Attorney General, Ministry of the Attorney General OHRC Commissioners

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

Stakeholder Roundtable

Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario

Summary Report

Prepared by:
Jennifer Gibson, PhD (Co-Chair, Bioethics Table)
Dianne Godkin, PhD (Co-Chair, Bioethics Table)
21 December 2020

Introduction
On December 17th, the Ontario COVID-19 Bioethics Table (the Bioethics Table) and the Ontario Human Rights Commission (OHRC) co-convened a roundtable with human rights stakeholders (Appendix 1) to review and provide feedback on the Ontario COVID-19 Bioethics Table’s Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (the Proposed Framework). The Proposed Framework was developed iteratively from March to August 2020 (Appendix 2) and submitted with recommendations for next steps to the Ministry of Health and Ontario Health in September 2020. An earlier version of the framework, which had been developed and released to Ontario hospitals in March 2020, was never implemented and was subsequently rescinded on October 29th.
The roundtable was facilitated by Dr. Kwame McKenzie (CEO, Wellesley Institute). Representatives from the Office of the Minister of Health, the Ministry of Health, Ontario Health and the COVID-19 Ontario Critical Care Command Centre were in attendance as observers. As laid out by Dr. McKenzie, the roundtable aimed to ensure: 1) that all human rights stakeholders were able to share their views on the Proposed Framework; 2) that their concerns were heard by the Ministry, Ontario Health, Critical Care Command Centre representatives and by Bioethics Table members; and 3) that there was clarity on how the Proposed Framework could be improved. Roundtable participants were also provided with links to recent publications on the topic of critical care triage and associated frameworks/protocols in Canada and elsewhere (Appendix 3).

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

Key Issues/Concerns and Potential Actions

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

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

1. Human Rights and Non-Discrimination as Legal ObligationsIssue: Roundtable participants need greater assurance that decisions related to critical care triage will be made in alignment with human rights codes and will be non-discriminatory.

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

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

Potential actions:
> Develop an equity-based checklist tool that healthcare providers must review and consider during the assessment stage of the triage process to help them account for the impact of social determinants of health and pre-existing co-morbidities due to social and historical inequities in the care of their patients.
> Make requirements for accommodations for persons with disabilities or to address communication barriers explicit, including allowing a support person to be present as needed.
> Ensure all who are involved in critical care triage process receive anti-racism, anti-bias (e.g., anti-ageism, anti-ableism), and Indigenous cultural safety training and/or have access to tools and resources (e.g., see checklist above) to minimize the risk of unconscious bias.

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

Potential actions:
> Develop a legal framework for critical care during a major surge, including key elements of due process.

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

Potential actions:
> Engage stakeholders in the identification/adaptation of clinical tools to ensure they are culturally appropriate.
> Reduce the duration of short-term predicted mortality risk from 12 months to a lesser time period.
> Include individuals (e.g., community leaders) outside of the medical profession in the implementation of the critical care triage decision-making process (e.g., as supports to patients in clinical decision-making; as members of the Triage Teams described in the Proposed Framework; as members of appeals committees).
> Develop accessible communication tools tailored to the needs of particular groups to foster understanding and trust.

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

Potential actions:
> Establish an external appeals process by a third party.

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

Potential actions:
> Develop an interim protocol in collaboration with human rights stakeholders and critical care providers. The interim protocol could be based on the institutional protocol created by the Ontario COVID-19 Critical Care Command Centre with modifications to reflect where there is broad human rights stakeholder agreement.
> Concurrently, continue stakeholder engagement to address unresolved issues and to advance elements of the Proposed Framework which may require more time to implement. APPENDIX 1: Roundtable Participants

Roundtable Facilitator:
Kwame McKenzie (CEO, Wellesley Institute)

Participants:
Nicole Blackman (Provincial Director, Indigenous Primary Health Care Council)
Avvy Go (Director, Chinese and Southeast Asian Legal Clinic)also provided written submission
James Janeiro (Director, Community Engagement and Policy, Community Living Toronto)
Trudo Lemmens (Professor & Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto) David Lepofsky (Chair, AODA Alliance)
Caroline Lidstone-Jones (CEO, Indigenous Primary Health Care Council) Roxanne Mykitiuk (Professor, Osgoode Hall Law School, York University) Tracy Odell (President, Citizens with Disabilities)
Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)
Jewelles Smith (Past-Chairperson, Council of Canadians with Disabilities)

Observers:
i) Office of the Minister of Health
Emily Beduz (Director, Pandemic Response)
Heather Potter (Director, Issues and Legislative Affairs)

ii) Ministry of Health
Tina Sakr (Team Lead, Priority and Acute Programs)
Jennifer Lee Arseneau (Senior Policy Advisor, Priority and Acute Programs)

iii) Ontario Health
Louise Verity (Strategic Advisor to the CEO)

iv) Ontario COVID-19 Critical Care Command Centre
Andrew Baker (Incident Commander)

v) Ontario Human Rights Commission
Ena Chadha (Chief Commissioner)
Violetta Igneski (Commissioner)
Raj Dhir (Executive Director and Chief Legal Counsel)
Shaheen Azmi (Director, Policy, Education, Monitoring & Outreach) Bryony Halpin (Senior Policy Analyst)
Jeff Poirier (Senior Policy Analyst)
Rita Samson (Senior Policy Analyst)

vi) Ontario COVID-19 Bioethics Table (in attendance)
Jennifer Gibson (Co-Chair; University of Toronto)
Dianne Godkin (Co-Chair; Trillium Health Partners)
Sally Bean (Toronto Region Bioethics Lead and Member; Sunnybrook Health Sciences Centre) Cecile Bensimon (Member; Canadian Medical Association)
Carrie Bernard (Member; William Osler Health System, University of Toronto, McMaster University)
Nicole Blackman (*new member as of Dec 2020; Indigenous Primary Health Care Council)
Paula Chidwick (Central Region Bioethics Lead and Member; William Osler Health System)
James Downar (Member; The Ottawa Hospital, Bruyere Continuing Care, Ottawa Health Research Institute) Lisa Forman (Member; University of Toronto)
Mary Huska (North Region Bioethics Lead and Member; Health Sciences North) Michael Kekewich (East Region Bioethics Lead and Member; The Ottawa Hospital) Stephanie Nixon (Member; University of Toronto)
Nancy Ondrusek (Member; Public Health Ontario)
Lisa Schwartz (Member; McMaster University)
Robert Sibbald (Member; London Health Sciences; Western University) Maxwell Smith (Past Co-Chair and Member; Western University) Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students
Veromi Asiradam, JD Student, Osgoode Hall Law School, York University Ya-En Cheng, JD Student, Osgoode Hall Law School, York University

viii) Recorder
Danielle Linnane (Quality Improvement Specialist, Ontario Health)

APPENDIX 2: Development of the Proposed Framework

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

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

In Phase 1, an initial draft framework was developed in March 2020 in response to an urgent need for the Ontario health system to prepare for the possibility of a major surge in demand for critical care as was being observed in Italy, Spain, and New York State. The initial draft, which was developed without the benefit of consultation with human rights stakeholders, among others, was released to hospitals on March 28 to aid planning. A major surge in demand for critical care was averted in Ontario. This draft framework was not implemented and was formally rescinded on October 29, 2020.

In Phase 2, extensive feedback on the initial draft framework was received in April 2020 through written submissions from diverse organizations and groups. Feedback was sent either directly to the Bioethics Table or to the Ministry of Health or Ontario Health and shared with the Bioethics Table. The Bioethics Table reviewed and considered all feedback and amended the document accordingly. Additional feedback was solicited from bioethics, health law, and clinical experts. An updated draft framework was developed in May 2020 based on new published findings in the literature, policy discussions in the public domain (e.g., policy statements), and written stakeholder feedback.

In Phase 3, the Bioethics Table began meeting with the Ontario Human Rights Commission (OHRC) in May 2020 and undertook an expanded stakeholder consultation process to elicit input from Black and other racialized groups, Indigenous health leaders, older adults, and disability rights experts. A first stakeholder roundtable was co-convened with the OHRC on July 15, 2020. Meetings continued through July and August with disability rights stakeholders and with the Indigenous Bioethics Reference Group of the Indigenous Primary Health Care Council. The Proposed Framework was informed extensively by these stakeholder discussions, an updated review of the literature and policy statements from civil society organizations (e.g., Canadian Association of Retired People), and additional input from health law and clinical experts. In December 2020, the Bioethics Table received approval to convene a second stakeholder roundtable to review and elicit feedback on the Proposed Framework. The roundtable took place on December 17, 2020.

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

Acknowledgments:

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

AODA Alliance
ARCH Disability Law Centre
Black Health Committee, Alliance for Health Communities
Canadian Frailty Network
Canadian Geriatric Society
Canadian Medical Protective Association
Canadian Thoracic Society
Chinese and Southeast Asian Legal Clinic
Citizens with Disabilities Ontario
Clinical, Organization, and Research Ethics (CORE) Network and Provincial COVID-19 Bioethics Community of Practice University of Toronto Joint Centre for Bioethics1 College of Nurses of Ontario
College of Physicians and Surgeons of Ontario
Community Living Toronto
Council of Canadians with Disabilities
COVID-19 Critical Care Command Centre and Provincial Critical Care Table, Ontario Health Indigenous Bioethics Reference Group, Indigenous Primary Health Care Council Muscular Dystrophy Canada
Ontario Hospital Association/HIROC
Ontario Human Rights Commission
Ontario Medical Association

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

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

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

APPENDIX 3: Roundtable Documents

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

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

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

Publicly Available Advocacy/Feedback related to Critical Care Triage

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

Journal & Media Articles

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

Summary of OHRC Feedback on Triage Framework
December 18, 2020

Interim Framework / Protocol

* The OHRC encourages the Ministry of Health to share the protocolized version of the Triage Framework that was sent to hospitals in Ontario and also make this document available to all stakeholders involved in the consultation.

* Without having seen this document, the OHRC is not in a position to assess whether the protocolized version could be adapted or whether an entirely new document needs to be developed to reflect stakeholder input and serve as an interim protocol. An interim protocol should be short, user friendly and developedwith a view to how it can be used ina crisis until further consultation can happen.

* The interim protocol could continue to evolveas a basis for further consultation on more complex and contentious issues. While not yet sanctioned by legislation or regulation, hospitals would have ready accessto a protocol that is reasonably acceptable to stakeholders if a major surge happens.

* An interim protocol could potentially address issues where there is agreement across stakeholder groups. The issues are, but not limited to:

o Ensure the protocol recognizes that human rights is the primary guiding principle and law in accordance with the primacy clause under section 47 of Ontario’s Human Rights Code (Code)

o Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge

o Exclude the Clinical Frailty Scale (CFS) and any other clinical assessment factors and tools that are not validated for critical care resource allocation. The Bioethics Table recognizes the CFS was designed and validated to help identify treatment plans and accommodation supports for frail patients, and not for critical care triage. Used as a triage tool, the CFS would likely disproportionately impact Code-protected groups and may be inconsistent with human rights obligations including the duty to accommodate

o Define short-term predicted mortality as the predicted risk of death in the initial weeks, and not twelve months after the onset of critical illness. The Bioethics Table recognizes that relatively little mortality occurs between six and twelve months

o Ensure a fair and efficient appeal mechanism

o Explicitly recognize the legal duty to accommodate including essential support persons / communications / interpreter access, etc.

o Mandate a clear procedure to document decisions that requires evidence-based written reasons. This could include a positive obligation checklist to account for issues of equity and the social determinants of health

o Require socio-demographic data collection to monitor for adverse application of the protocol

o Allow for human rights equity groupsto monitor, and provide feedback on the protocol.

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

* Issue clear communications that health care providers must disregard and destroy the March 28 version of the protocol

* Circulate theproposed framework, including the clinical assessment factors and tools, for public feedback and independent legal review

* Convene amultidisciplinary panel, including experts in human rights and law to further develop, or refute, the clinical factors and tools identified in the proposed framework

* Engage health care partners to developguidance for implementing the protocolincluding clinical operations, communications, training, patient and clinician supports, data collection and monitoring

* Provide forgovernance and accountability mechanismsincluding responsibility for initiating the protocol, data collection and independent monitoring for adverse consequences

* Sustain equitable COVID-19 prevention efforts to avoid the need to initiate the protocol, and mitigate disproportionate impacts on vulnerable groups

* Meaningfully engage vulnerable groups, including Indigenous communities, Black and racialized communities, persons with disabilities, older persons and others for their perspectives and participation throughout the process to finalize and implement the protocol.

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

March 2, 2021

            SUMMARY

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

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

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

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

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

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

For more background, check out:

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

            MORE DETAILS

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

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

Chief Commissioner

cc:        Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

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

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

Hon. Doug Downey, Attorney General

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

OHRC Commissioners

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

Stakeholder Roundtable

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

Proposed Framework for Ontario

Summary Report

Prepared by:

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

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

21 December 2020

 

Introduction

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

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

 

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

 

Key Issues/Concerns and Potential Actions

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

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

1.     Human Rights and Non-Discrimination as Legal Obligations
 

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

Potential actions:

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

2.     Equity as a Positive Obligation
 

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

Potential actions:

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

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

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

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

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

Potential actions:

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

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

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

Potential actions:

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

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

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

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

 

5. Right to Appeal
 

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

Potential actions:

Ø  Establish an external appeals process by a third party.

6. Development of Interim Protocol for Wave 2
 

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

Potential actions:

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

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

APPENDIX 1: Roundtable Participants

Roundtable Facilitator:

Kwame McKenzie (CEO, Wellesley Institute)

Participants:

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

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

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

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

David Lepofsky (Chair, AODA Alliance)

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

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

Tracy Odell (President, Citizens with Disabilities)

Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)

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

Observers:

  1. Office of the Minister of Health

Emily Beduz (Director, Pandemic Response)

Heather Potter (Director, Issues and Legislative Affairs)

  1. Ministry of Health

Tina Sakr (Team Lead, Priority and Acute Programs)

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

Louise Verity (Strategic Advisor to the CEO)

  1. Ontario COVID-19 Critical Care Command Centre

Andrew Baker (Incident Commander)

 

  1. Ontario Human Rights Commission

Ena Chadha (Chief Commissioner)

Violetta Igneski (Commissioner)

Raj Dhir (Executive Director and Chief Legal Counsel)

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

Bryony Halpin (Senior Policy Analyst)

Jeff Poirier (Senior Policy Analyst)

Rita Samson (Senior Policy Analyst)

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

Jennifer Gibson (Co-Chair; University of Toronto)

Dianne Godkin (Co-Chair; Trillium Health Partners)

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

Cecile Bensimon (Member; Canadian Medical Association)

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

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

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

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

Lisa Forman (Member; University of Toronto)

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

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

Stephanie Nixon (Member; University of Toronto)

Nancy Ondrusek (Member; Public Health Ontario)

Lisa Schwartz (Member; McMaster University)

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

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

Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students

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

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

viii) Recorder

Danielle Linnane (Quality Improvement Specialist, Ontario Health)

 

APPENDIX 2: Development of the Proposed Framework

 

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

 

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

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

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

Acknowledgments:

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

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

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

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

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

 

APPENDIX 3: Roundtable Documents

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

 

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

 

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

 

Publicly Available Advocacy/Feedback related to Critical Care Triage

 

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

 

Journal & Media Articles

 

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

APPENDIX 4: OHRC Recommendations

Summary of OHRC Feedback on Triage Framework

December 18, 2020

 

Interim Framework / Protocol

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

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

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

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



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


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE

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

1. It is dangerous to relegate concern about Ontario’s critical care triage plans to the back burner, just because COVID infection rates are reducing and vaccines are gradually being distributed. There remains a real risk of another COVID-19 surge. A senior medical advisor to the Government advisor said on January 23, 2021 that such triage may already be taking place.

2. A seriously flawed, disability-discriminatory and highly objectionable online calculator has been created for triage doctors to determine who will be refused life-saving critical care during triage or rationing of critical care. Such an online calculator’s computation, based on a doctor’s keying in data, should never decide that a patient should be refused life-saving critical care they need. This is especially so when that online calculator discriminates against some patients based on their disability.

3. If hospitals start rationing or triaging critical care, there is a danger that some emergency medical technicians (EMTs) may improperly refuse to give a patient critical care they need and want before the patient even gets to the hospital an improper backdoor trickle-down form of critical care triage.

4. A transparently erroneous legal strategy has been devised for defending the legality of Ontario’s critical care triage plan. Triage doctors, hospitals and the Ontario Government are expected to argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they are following the January 13, 2021 Critical Care Triage Protocol (a protocol that is rife with serious problems that the AODA Alliance and other disability advocates have previously identified). They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This new report shows that that legal defence strategy is fatally flawed.

5. A troubling January 23, 2021 webinar to train frontline critical care triage doctors wrongly minimizes the enormity of the role doctors would play, while they are making life-and-death decisions over which patients would get life-saving critical care, if critical care triage takes place. That webinar harmfully and wrongly tries to convince triage doctors not to worry about being sued, so long as they follow the January 13, 2021 Critical Care Triage Protocol. At the same time, that webinar did not alert frontline doctors to the serious disability discrimination and due process concerns that disability advocates have raised with the directions that those frontline doctors are being told to implement if critical care triage is to occur.

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

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

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




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



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



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


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

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

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

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

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

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

For more background on this issue, check out:

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



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