5 things you need to know about long-term disability claims and CPP disability



Our team of long-term disability lawyers at Samfiru Tumarkin LLP gets a lot of questions about the difference between long-term disability (LTD) benefits and Canada Pension Plan disability (CPPD) benefits. 

Many LTD insurers tell claimants to apply for CPPD. But claimants then wonder whether they have to apply and what happens if they do not.

Here are five things you should know about the relationship between LTD claims and CPPD in Canada.

1. LTD is not the same thing as CPPD

A long-term disability claim is the benefit from income replacement insurance purchased privately by an individual. This insurance might also be included as part of an employee’s group benefits plan at work. 

Canada Pension Plan disability benefits are a government pension provided to individuals. To qualify for CPPD, you must satisfy the government that the disability that prevents you from working is both severe and prolonged.

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2. Getting CPPD may change the amount an LTD insurer pays

Long-term disability insurance companies often ask claimants to apply for CPPD because most LTD policies have provisions that say insurers get a credit for any CPPD that claimants receive. 

For example, a disabled employee might receive $2,000 per month from their LTD insurer and then get approved for $1,000 per month in CPPD. That person would not receive a total of $3,000 in benefits per month. 

Instead, the insurance company’s obligation to pay is reduced by the amount the claimant receives from CPPD. So this claimant would still receive $2,000 in benefits per month: $1,000 from the insurer and $1,000 from CPPD.

READ MORE: Can the insurance company force me back to work?

3. If you want to claim LTD, you should also apply for CPPD

Claimants often ask whether they should even bother applying for CPPD, if the insurance company deducts any CPPD benefits from the total they will pay. But I always recommend applying for three reasons.

First, if you fail to apply for CPPD, your LTD insurer may estimate how much you would have received from CPPD, had you applied, and then reduce your monthly LTD amount accordingly. 

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In some cases, I have even seen insurers take the position that claimants breached their contractual obligations under their LTD policies by not applying for CPPD and then cut off LTD payments altogether as a result. We have successfully challenged such denials by insurers, but it is a risk claimants should keep in mind.

Second, if you apply for CPPD and get approved, the LTD insurer will have greater difficulty in arguing in the future that you are not disabled from working, since the federal government has deemed your disability both severe and prolonged. Getting CPPD means your case for receiving LTD on the basis of being disabled from working is that much stronger.

Third, if you apply for CPPD and get approved, you’ll receive payments no matter what happens with your LTD benefits. Even if your insurer denies your LTD claim or cuts off your benefits, you’ll still have financial help while you challenge the insurance company’s denial.

4. You can appeal a CPPD rejection — but you may not have to

A long-term disability claimant may be rejected when they apply for CPPD. This happens for various reasons, and claimants can appeal the rejection. 

If the decision is overturned, the individual is subsequently approved for CPPD. But unless their LTD policy specifies otherwise, claimants are not obligated to appeal the CPPD rejection.

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READ MORE: Long-term disability rights during the COVID-19 pandemic

If a CPPD application is rejected, an insurer cannot reduce the monthly LTD benefits by the amount that the claimant could have received from CPPD — because they did not receive it. 

In many cases, however, LTD insurers cut off claimants’ LTD payments after their CPPD applications are rejected. This is not fair, and often it is not legal.

5. You should contact a disability lawyer if your LTD benefits are cut off 

I advise claimants not to accept an insurance company’s LTD claim denial without consulting a disability lawyer. 

In many instances, insurers who deny legitimate LTD claims subsequently pay significant amounts of money to settle such claims. In other cases, the insurers reinstate claimants after a disability lawyer becomes involved.

READ MORE: Long-term disability claim denied? This is why you need a lawyer


At Samfiru Tumarkin LLP, our lawyers in Ontario, British Columbia and Alberta resolve LTD claims with insurance companies regularly. Our team also focuses on employment law matters, including terminations, layoffs, severance pay and workplace disputes.

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We provide peace of mind and fight for our clients’ rights, as shown by previous cases involving Sandra Bullock and Julie Austin. Most importantly, we ensure that they get paid what they are owed under their disability policies.


Do you have questions about your disability claim and CPPD? Has your long-term disability claim been denied or cut off?

Contact the firm or call 1-855-821-5900 to secure assistance from a long-term disability lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve — from the most positively reviewed disability law firm in the country.

Sivan Tumarkin is a disability lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in long-term disability claims and employment law. He also provides free advice as the host of Canada’s only Disability Law Show on TV and radio.






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Disability Advocates Want Windsor Homeowners to Shovel Their Sidewalks, Consider Others


‘It makes you feel a little not respected or thought about’
CBC News
Posted: Feb 09, 2021

The past few days of snowfall have made it difficult for Danica McPhee, who uses a wheelchair, to go for walks or get around Windsor due to the number of sidewalks left unshovelled.

Having been stuck in the snow before, McPhee said she’s often discouraged from heading out in the winter to walk her dog or do other activities alone, out of concern that she might find herself in the “humiliating” situation again.

In Windsor, there’s a bylaw that requires homeowners and tenants to clear the snow in front of their house within 12 hours, yet some still don’t get it done.

And while the issue isn’t new, it’s become even more frustrating for people like McPhee who live with a disability.

“It just feels a little bit like you don’t matter and that’s a feeling we get every time we can’t enter a building and it hurts,” said McPhee, who works with Assisted Living Southwestern Ontario.

“It’s difficult … I walk my dog every day, I’m assuming that I’m kind of known to the neighbourhood … and again it makes you feel a little not respected or thought about, even if that’s not the intention.”

McPhee added that the curb cuts, where the sidewalk dips down for someone to cross the street, often also gets covered by snow and she asks that the city be mindful of these spaces, along with bus stops.

Yet most of these accessibility issues don’t get recognized unless someone complains, McPhee said, adding that that’s not necessarily the best way to deal with these issues.

“That actually puts all the onus on the person who’s already being discriminated against to stand up for themselves and they just might not be able to do that,” she said, adding that active monitoring by the city might help.

As a result of snow and ice pile up, she’s unable to routinely walk her dog in the winter and has to send it to a daycare for proper exercise.

Despite the added cost this brings, she said when she comes across a stretch of unshovelled sidewalk she always thinks about the person in the home – whether they also have a disability or are elderly and can’t take off the snow themselves.

“I’m conflicted about it, I get so upset when I’m rolling over the snow and my fingers are freezing and I can’t move but then I wonder is it somebody with a disability in there? Are they trapped inside as well?” she said.

‘Inclusion is the gateway to independence’

But even then, the City of Windsor has a Snow Angels program where residents can call 311 to have someone voluntarily shovel their space if they can’t do it themselves.

Disability advocate Kevin McShan, who uses an electric-powered wheelchair, says he’s also gotten himself stuck in the snow and, like McPhee, has dealt with the issue for quite some time.

“You learn to be strategic I’ll tell you that much, you try to look at the most uncumbersome path and what I mean by that is when there’s less snow you try to aim your wheelchair and if you get stuck in the snow you hope you have enough horsepower to get out of it,” he said, adding that he also makes sure he goes out with a personal support worker or someone who can pull him out.

But what would help is if people took more of an initiative to think of others, he said.

“Inclusion is the gateway to independence so anything we can do to alleviate the concerns for people with disabilities I’m all for it,” he said.

“We’re all rolling in the same boat and one thing I always tell people is ‘if you don’t want to help me out, how about we trade places for a day’ and then they usually get the message.”

Original at https://www.cbc.ca/news/canada/windsor/disability-snow-advocates-sidewalk-1.5907266




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


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

January 29, 2021

SUMMARY

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

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

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

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

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

MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over 2.6 million Ontarians with disabilities deserve better.

3. The Onley Report’s Summary of Its Recommendations

1. Renew government leadership in implementing the AODA.
Take an all-of-government approach by making accessibility the responsibility of every ministry.
Ensure that public money is never used to create or maintain accessibility barriers. Lead by example.
Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

2. Reduce the uncertainty surrounding basic concepts in the AODA. Define accessibility.
Clarify the AODA’s relationship with the Human Rights Code.
Update the definition of disability.

3. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.
Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.
Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.
Include accessibility in professional training for architects and other design fields.

4. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.

5. Revamp the Information and Communications standards to keep up with rapidly changing technology.

6. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.

7. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.

8. Develop new comprehensive Built Environment accessibility standards through a process to:
Review and revise the 2013 Building Code amendments for new construction and major renovations Review and revise the Design of Public Spaces standards
Create new standards for retrofitting buildings.

9. Provide tax incentives for accessibility retrofits to buildings.

10. Introduce financial incentives to improve accessibility in residential housing.
Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units. Offer tax breaks to boost accessibility in new residential housing.

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

12. Enforce the AODA.
Establish a complaint mechanism for reporting AODA violations. Raise the profile of AODA enforcement.

13. Deliver more responsive, authoritative and comprehensive support for AODA implementation. Issue clear, in-depth guidelines interpreting accessibility standards.
Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.
Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

14. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.

15. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

January 29, 2021

            SUMMARY

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

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

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

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

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

            MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

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

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

Lead by example.

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

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

Define “accessibility”.

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

Update the definition of “disability”.

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

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

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

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

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

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

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

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

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

Offer tax breaks to boost accessibility in new residential housing.

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

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

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

Issue clear, in-depth guidelines interpreting accessibility standards.

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

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

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



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


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

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

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

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

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

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

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

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

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

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

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

For more background, check out:

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

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

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

Mr. Robinson: Thank you, Mr. Chairman.

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

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

Et en français, it est proposé

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

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

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

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

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

[Page 84]

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

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

I am informed, for example …

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

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

Mr. Robinson: Thank you, Mr. Chairman.

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

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

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

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

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

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

[Page 85]

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

Thank you, Mr. Chairman.

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

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

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

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

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

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

Mr. Robinson to conclude.

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

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

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

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

[Page 86]

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

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

Mr. Robinson: Yes, Mr. Chairman.

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

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

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

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

Amendment negatived.

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

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

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

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

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

[Translation]

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

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

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

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

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

[Translation]

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

[Text]

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

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

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

Mr. Chrétien: Yes. Yes.

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

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

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

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

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

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

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

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

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

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

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

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

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

Monsieur Corbin.

  1. Corbin: Merci, monsieur le president.

Or, je propose

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

«Droits à l’égalité

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

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

“Equality Rights

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

[Translation]

Thank you, Mr. Chairman.

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

[Text]

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

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

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

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

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

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

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

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

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

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

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

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

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

Il est proposé

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

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

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

[Page 90]

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

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

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

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

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

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

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

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

Mr. Crombie: Thank you, Mr. Chairman.

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

age or mental or physical disability.

En français, il est proposé

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

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

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

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

[Page 91]

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

Thank you very much.

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

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

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

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

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

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

You can have lots of beer on my health.

Thank you for your good representation.

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

Amendment agreed to.

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

Mr. Robinson: Thank you, Mr. Chairman.

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

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

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

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

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

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

[Page 92]

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

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

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

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

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

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



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Any Time, You Can Watch The Agenda with Steve Paikin’s Panel on Disability Discrimination Risks If Life-Saving Critical Medical Care Must Soon Be Rationed – and


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/

January 14, 2021

SUMMARY

1. You Can Watch “The Agenda with Steve Paikin’s January 13, 2021 Panel on Critical Care Triage Issues for Patients with Disabilities Any Time

We continue our unbelievably uphill efforts to get the media to cover the immediate and important issue of the danger that patients with disabilities could be subjected to disability discrimination in access to life-saving critical medical care if overloaded hospitals must ration or “triage” critical medical care. The Ford Government still refuses to answer our letters on this issue.
The one and only televised panel discussion devoted to this issue that included disability and bioethics perspectives took place last night on TVO’s The Agenda with Steve Paikin. You can watch this 30 minute discussion any time by going to this link: https://www.youtube.com/watch?v=qkq1NmaXLwk&feature=youtu.be
The panelists were AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre counsel Mariam Shanouda, Dr. James Downar (a member of the Government-appointed external advisory Bioethics Table and an author of the March 28, 2020 critical care triage protocol with which the disability community had strong objections) and Ontario research chair in bioethics Prof. Udo Schuklenk.
As you watch this panel, please remember that as far as we can tell, there is now no protocol in place in Ontario to direct hospitals what to do if critical care must be rationed or triaged. There is some reference during the panel to a current triage “protocol”. As speakers confirmed elsewhere during the panel, and as is also confirmed elsewhere, the Government has not finalized and issued any critical care triage protocol as of now.
We welcome your feedback on this panel. We will have more to say about it in the future. Write us at [email protected]
We respectfully take issue with some of Dr. Downar’s and Prof. Schuklenk’s statements. Because of time limitations, there was not enough opportunity for David Lepofsky or Mariam Shanouda to itemize all of these concerns during the interview. We fully understand that there is a limited amount of information that can be conveyed in such a panel.

2. Canadian Press Publishes a Strong Report on the Critical Care Triage Dangers Posed for People with Disabilities

On January 13, 2021, the Canadian Press’s Liam Casey wrote an excellent article on the same critical care triage issue. So far, we have found that article posted on the websites of the Toronto Star and Global News. We have not yet ascertained if any newspapers included it in their hard copy editions, or if any radio or TV news reports included any of it. We set that report out below.

3. What You Can Do

Please spread the word far and wide about the panel on The Agenda with Steve Paikin, and the CP news story. Post these on social media and your website. Email them to others. Recruit a carrier pigeon to get the word out, if you can. Urge as many people as possible to tell the Ford Government that it should immediately consult directly with the public including people with disabilities, and not just hide behind its external advisory Bioethics Table. The Ford Government should also answer our unanswered letters on this issue, sent last fall.
We thank The Agenda with Steve Paikin and its host and staff for including this panel. We applaud the Canadian Press as well. We urge other news and public affairs programs to follow the commendable examples of The Agenda with Steve Paikin and Canadian Press, and give this issue the coverage that it so urgently deserves.
As of now, there have been 714 days, over 23 months, since the Ford Government received the final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that ground-breaking report. This worsens the festering problems facing patients with disabilities during the COVID-19 pandemic, such as those addressed in this new episode of The Agenda with Steve Paikin. For more background on this issue, check out:

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

2. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.

3. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.

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 and its December 17, 2020 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. MORE DETAILS

January 13, 2021 Toronto Star Online
Originally posted at https://www.thestar.com/news/gta/2021/01/13/medical-staff-need-guidance-on-life-or-death-triage-decision-as-icus-fill-up-experts.html

January 13, 2021 Toronto Star Online

Originally posted at https://www.thestar.com/news/gta/2021/01/13/medical-staff-need-guidance-on-life-or-death-triage-decision-as-icus-fill-up-experts.html

Medical staff need guidance on life-or-death triage decision as ICUs fill up: experts

An ICU health-care worker shown inside a negative pressure room cares for a COVID-19 patient on a ventilator at the Humber River Hospital during the COVID-19
pandemic in Toronto on Wednesday, December 9, 2020. Hospitals and human rights organizations want Ontario to finalize its plan on who, and how, life or
death decisions for patients will be made if and when the day comes where ICU beds will be full. By Liam Casey The Canadian Press
Wed., Jan. 13, 20213
TORONTO – As intensive care units in Ontario hospitals continue to fill up with COVID-19 patients, the province has yet to finalize a plan on who should get life-saving care when health resources are limited.
The latest COVID-19 projections show the province’s ICUs could reach “gridlock” by mid-to-late February. At that point, health-care workers will have to decide who gets an ICU bed and who doesn’t – a practice known as critical care triage. It’s a heart-wrenching decision doctors in a number of countries with hospitals overwhelmed with COVID-19 patients have had to make.
“It’s really concerning to not know what the plan is and transparency around that would go a long way towards everyone’s ability to prepare and everyone’s mental well-being,” said Dr. Samantha Hill, the president of the Ontario Medical Association, which represents more than 40,000 physicians.
The province has stumbled in its efforts to get the critical care triage ethical framework out to doctors.
Ontario Health sent out a critical care triage protocol on March 28, 2020, but retracted it several months later after an outcry from human rights organizations.
“The first protocol was horrifically discriminatory against patients with disabilities,” said David Lepofsky, the chairman of Accessibility for Ontarians with Disabilities Act Alliance.
One problem with that proposal was the use of a “clinical frailty scale,” or CFS, Lepofsky said. The scale is also part of a proposed framework sent to the government by the Bioethics Table, which advises the province on the health system’s response to COVID-19.
The document – titled “Critical Care Triage during Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario” – lays out how a patient would qualify or be excluded from critical care and was sent to the province in September.
The clinical frailty scale is used as a prognostic tool for progressive illnesses that assesses a patient’s general deterioration over time, the Bioethics Table notes in the document, which was obtained by The Canadian Press.
However, the proposal acknowledges that the CFS “would seem to conflate disability with frailty and hence would contribute to over-triaging of persons with disabilities.”
It further notes that the CFS “illustrates how clinical evidence and experience are not sufficient alone to establish the justifiable use of a clinical tool and calls attention to the embedding of social norms within clinical tools and in their application in practice.”
The Ontario Human Rights Commission has also expressed concern about the recommendation that patients be evaluated for their survival potential over the next 12 months.
Under the Bioethics Table’s proposed protocol, patients would be evaluated and assigned into colour-coded categories based on the predicted percentage of short-term mortality risk over the next year.
There would then be three levels of triage depending on demand and availability of beds. In Level 1 triage, patients who have greater than 20 per cent chance of surviving 12 months should be prioritized. In Level 2, patients with greater than 50 per cent chance of survival in a year should be prioritized and, in Level 3, patients who have a greater than 70 per cent chance of survival should be prioritized.

Ena Chadha, the chief commissioner of the Ontario Human Rights Commission, said the 12-month time period is troubling.
“A doctor can make a decision in the short term: is this person going to survive next week, the next two weeks,” she said.
“But when you start looking at one year…you are going to be infused with discriminatory ideas about the person’s disability and age. Our stakeholders would like to see a much shorter time frame.”
Both Lepofsky and Chadha, along with the Bioethics Table, said there must also be due process an appeal process so that life or death decisions aren’t made by one person.
Another major concern for both Lepofsky and Chadha is the province’s lack of transparency on such an important issue.
“This process is very opaque as to who are the decision-makers, what is the process and where are we at right now?” Chadha said.
“This is distressing for our community stakeholders. They are very worried that their dignity and life is at stake and that when it comes to making decisions about a very horrible death, the health-care decision-makers may not understand the value of their life.”
The Ministry of Health said the Bioethics Table will continue to talk to various stakeholders.
“These conversations are ongoing to ensure that the proposed framework reflects the best available evidence and advice,” said spokesman David Jensen, noting that nothing has been approved by the ministry.




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

January 13, 2021

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

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

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

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

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

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

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

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

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

For more background on this issue, check out:

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

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

  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.





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Definitions of Disability Across Canada


Many separate accessibility laws exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA,  with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA may change to align with laws in other places across the country. In this article, we explore definitions of disability across Canada. Differing definitions impact how citizens understand what disability is, and how to remove barriers to improve accessibility.

Definitions of Disability Across Canada

The AODA’s Definition of Disability

Currently, the AODA defines disability broadly. It states that disability can happen at birth, or through illness or injury. Furthermore, the act also outlines several types of disability. These types are examples, rather than a complete list of all disabilities.

Physical Disabilities

For instance, the act states that physical disabilities may include:

  • Diabetes
  • Epilepsy
  • A brain injury
  • Paralysis
  • Amputation
  • Lack of coordination
  • Visual impairment
  • Hearing impairment
  • Speech impairment
  • Reliance on a:

In other words, disability sometimes affects how people’s bodies move, or how they perceive or communicate. In addition, some people with disabilities use service animals or assistive devices. Alternatively, other people have invisible disabilities. Moreover, there are different kinds or degrees of disability. For instance, one person may have one amputated limb, while another person has more than one. Likewise, one person may be totally blind while another person has some sight.

Other Disabilities

The AODA then briefly lists some other types of disability, which include:

  • Mental impairment or developmental disability
  • Learning disability
  • Mental health disability
  • An injury or disability that allows someone to claim or receive benefits under the Workplace Safety and Insurance Act

Definitions of Disability in Other Laws

Under the Accessible Canada Act, disability means an impairment or functional limitation that reduces someone’s full involvement in society because of barriers they face. For example, some kinds of impairments that people experience are:

  • Physical
  • Mental
  • Intellectual
  • Cognitive
  • Learning
  • Communication
  • Sensory

Moreover, some disabilities are permanent, while others are temporary. Alternatively, some disabilities are episodic. In addition, some disabilities are evident, or visible, while others are non-evident or invisible.

Understanding Disability

The AODA’s definition of disability focuses on how people’s bodies and minds differ. In other words, the definition uses a medical model of understanding disability. However, the definition does not help people understand how these physical and mental differences impact people’s every-day lives. In contrast, definitions in other laws, such as the Accessible Canada Act and the Nova Scotia Accessibility Act, use a social model of disability. This model explains disability in terms of how barriers in structures and services exclude people with physical or mental impairments. This definition helps people understand that structures and services should be open to people with disabilities.

Furthermore, both definitions offer many examples of disability to help people recognize it. The AODA’s definition mentions many specific impairments that people have. However, this definition focuses on disabilities that are visible. Moreover, simply listing the names of impairments does not help the public understand how these impairments affect people’s lives. In contrast, the Accessible Canada Act’s list of specific impairments is brief but broad. Instead, the definition points out important concepts that the public should know about disability. For instance, this definition helps people recognize that they cannot see every disability. Likewise, the Act points out that while some people’s disabilities are permanent, other people’s disabilities change over time.

In short, while the AODA’s definition of disability offers some basic concepts, the definition in the Accessible Canada Act provides broader concepts that increase public understanding about disability in daily life. Instead of focusing on people’s bodies and minds, this definition emphasizes how removing barriers improves people’s lives. As a result, if the AODA uses this definition, it will better reflect the purpose and power of accessibility laws throughout Canada.




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The Ontario Bioethics Table’s Secret September 11, 2020 Recommendations on How to Ration or “Triage” Life-Saving Critical Medical Care if COVID-19 Cases Overload Ontario Hospitals are Finally Revealed, and Incorporate a Number of Disability Advocates’ Proposals


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

December 15, 2020

SUMMARY

What a major partial breakthrough we have had in our 9-month campaign to ensure that patients with disabilities face no discrimination in access to life-saving critical care if the uncontrolled surge in COVID-19 infections requires the rationing or triage of critical care in Ontario hospitals. At the end of the day last Thursday, December 10, 2020, we finally got to see the previously-secret September 11, 2020 recommendations on critical care triage from the Government-appointed Bioethics Table. Right here and now, we make these recommendations public. You can download the Bioethics Table’s September 11, 2020 recommendations on how to conduct critical care triage by clicking on this link: https://www.aodaalliance.org/wp-content/uploads/2020/12/Sept-11-2020-Draft-Critical-Care-Triage-Recommendations-from-Ontario-Bioethics-Table.docx

This Update gives you all the background leading to this interim breakthrough. It is going to take us some time to fully analyze the Bioethics Table’s September 11, 2020 recommendations. However, from our first quick review, it is clear that last summer, the Bioethics Table adopted a number of key points made by disability community advocates and experts including, among others, the AODA Alliance and the ARCH Disability Law Centre.

The Bioethics Table commendably that the discriminatory Clinical Frailty Scale, which the Government had previously directed all hospitals to use for triage, should NOT be used, because it is discriminatory against patients with disabilities. The Bioethics Table recommended that human rights principles should form an important part of any triage protocol. It recommended a number of key restrictions on triage decisions for which we advocated in the AODA Alliance’s April 14, 2020 Discussion Paper on this issue. It called for there to be due process protections for patients with disabilities who are at risk of being refused life-saving critical care due to rationing, though not all the due process safeguards for which we advocate.

These are all very important steps forward. However, we are not yet out of the woods. There remain a number of important issues that we are exploring. It is not clear to us exactly how decisions would be made on who is refused life-saving critical care that they medically need. It is not clear that disability discrimination has been prevented, despite all those helpful improvements for which we commend the Bioethics Table.

From our review of this document, it is crystal clear that the Ford Government had no excuse or justification for keeping it secret for three months. Precious time has been inexcusably lost in the midst of a dangerous pandemic.

The AODA Alliance will be taking part in a roundtable on December 17, 2020 on this topic, organized by the Ontario Human Rights Commission. We thank the Ontario Human Rights Commission for helping press the Ford Government on this issue. Our combined pressure helped get us to this new stage.

Despite all the excitement about the new COVID-19 vaccines, the risk of critical care triage gets greater and greater as daily infections rise. Today Ontario reported a record-breaking 2,275 new cases. We will have more to say on this topic after we roll up our sleeves and dig further into the Bioethics Table’s September 11, 2020 recommendations.

Below we provide you with a short chronology of the major events on this long and winding road, including the new events unfolding over the past 10 days leading up to this news. We also set out in chronological order the six letters that document these events as they unfolded.

1. The December 7, 2020 letter from the AODA Alliance to Health Minister Christine Elliott
2. The December 7, 2020 letter from the Ontario Human Rights Commission’s Chief Commissioner to Health Minister Christine Elliott
3. The December 10, 2020 Letter from the Ontario Human Rights Commission to the AODA Alliance and Other Human Rights Organizations
4. The December 11, 2020 email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-chair Jennifer Gibson
5. The December 15, 2020 letter from the AODA Alliance to Health Minister Christine Elliott, and
6. The December 15, 2020 email from AODA Alliance Chair David Lepofsky to the Bioethics Table Co-chairs.

For more background on this issue, check out:
1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government appointed Bioethics Table.
2. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter and its November 9, 2020 letter to Health Minister Christine Elliott
3. 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.
4. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
5. 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
6. 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

Short Chronology of the Ontario Critical Care Triage Saga

(Note: this does not list every letter or other action taken on this issue by disability advocates, including the AODA Alliance)

February 2020: With the COVID-19 pandemic approaching Canada, the Ontario Government appoints an external advisory Bioethics Table to propose how to ration or triage critical medical care if hospitals get overloaded. The public is not told about this. Disability community is not consulted.

March 28, 2020: the Bioethics Table recommends a critical care triage protocol. The Ford Government sends it to all Ontario hospitals. It is not made public. The public is not told this is going on.

April 8, 2020: After word of the triage protocol is leaked to the disability community, an open letter to the Ford Government is made public, condemning the March 28, 2020 protocol as discriminating based on disability.

April 21, 2020: The Ford Government says the March 28, 2020 triage protocol is only a draft, even though it was not marked draft. The Government says human rights and community experts will be consulted on it.

Summer 2020: The Bioethics Table invites some disability advocates and experts to a series of virtual meetings to get input. A revised draft triage protocol is shared, which the AODA Alliance makes public on its website on July 16, 2020.

August 31, 2020: Disability advocates and experts make their closing presentation to the Bioethics Table and send in detailed written submissions.

September 11, 2020: the Bioethics Table submits its revised recommendations on critical care triage to the Ford Government. These are shared with the Ontario Human Rights Commission but not the public, despite the fact that the Ontario Human Rights Commission and the Bioethics Table urge the Government to make this report public.

September to December 2020: the Ford Government refuses to make public the Bioethics Table’s September 11, 2020 recommendations, despite requests from the disability community, the Opposition in the Legislature, the Bioethics Table, the Ontario Human Rights Commission and the media. No explanation for this secrecy is provided.

October 29, 2020: The Ford Government writes Ontario hospitals to belatedly cancel the March 28, 2020 triage protocol and direct that it not be followed. The Government does not make this action public.

November 5, 2020: In the Legislature during question Period, the NDP presses the Government to make public the Bioethics Table’s recommendations and to cancel the March 28, 2020 triage protocol. In response to this question, the Government reveals for the first time that it had cancelled the March 28, 2020 critical care triage protocol. It says that it may send a new critical care triage protocol to health providers in the future if conditions deteriorate significantly but doubted that such conditions would happen.

December 3, 2020: 64 organizations mark the International Day for Persons with Disabilities by making public an open letter to the Ford Government calling for the Government to make public the Bioethics Table’s September 11, 2020 triage protocol recommendations. The Government is confronted on this issue in the Legislature during Question Period.

December 3, 2020: During the Premier’s midday news conference, Health Minister Christine Elliott tells the media there are discussions now ongoing with the Ontario Human Rights Commission on what the triage protocol should provide.

December 7, 2020: The Chief Commissioner of the Ontario Human Rights Commission writes Health Minister Christine Elliott in substance contradicting her claim that discussions are now ongoing with the Ontario Human Rights Commission on the triage protocol. The Chief Commissioner states that the Minister has not even answered the Commission’s October 16 and November 6, 2020 letters to the Minister on this topic. (Letter set out below.)

December 7, 2020: The AODA Alliance writes Health Minister Christine Elliott documenting that there is an unexplained and troubling contradiction between the Minister’s December 3, 2020 statement to the media and the Human Rights Commission’s December 7, 2020 letter to the Minister. The Minister is again pressed to make public the Bioethics Table’s September 11, 2020 triage recommendations. (Letter set out below.)

December 10, 2020: The Ontario Human Rights Commission writes the AODA Alliance and other human rights organizations to provide a copy of the Bioethics Table’s September 11, 2020 triage recommendations. A December 17, 2020 roundtable is announced to get input on those recommendations. (Letter set out below.) We believe that the combination of all our efforts and those of the Ontario Human Rights Commission over the previous week helped get the Government to finally let the September 11, 2020 Bioethics Table recommendations see the light of day.

December 11, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Chair to resist a claim that the Bioethics Table’s September 11, 2020 recommendations remain confidential. The AODA Alliance will treat them as public. (Letter set out below.)

December 15, 2020: AODA Alliance again writes Health Minister Christine Elliott to ask the Government to make public any documents it has sent hospitals on barrier’s September 11, 2020 triage recommendations, to ask to speak directly with the Government’s internal Critical Care Command Table, and to urge an end to the Government’s protracted secrecy in this area. (Letter set out below.)

December 15, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Co-Chairs to ask for further information to help human rights organizations prepare for December 17, 2020 roundtable. (Letter set out below.)

December 7, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

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

December 7, 2020

To: The Hon. Christine Elliott, Minister of Health
Via email: [email protected]
Ministry of Health
5th Floor
777 Bay St.
Toronto, ON M7A 2J3

Dear Minister,

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

We write about your public statement to the media on December 3, 2020, the International Day for Persons with Disabilities. As we clearly understood it, you said that your Government is now holding ongoing discussions with the Ontario Human Rights Commission on a proposed protocol for rationing or triage of life-saving critical medical care, if skyrocketing COVID-19 infections require rationing of critical care in Ontario hospitals. The text of your full exchange with a Global News reporter, available on Youtube, during Premier Ford’s December 3, 2020 news conference, is as follows:

Miranda Anthistle: Hi there, thank you for my question.
Doug Ford: Hi. How are you?
Miranda Anthistle: Ok, so the first one is, the Ontarians With Disabilities Act Alliance has written an open letter to your government about transparency on how decisions will be made when it comes to prioritizing life-saving treatments and who will get them if hospitals become overwhelmed. So will this information be released and how does the government plan on prioritizing life-saving treatments?

Doug Ford: Pass that to the Minister:
Christine Elliott: Well this is a very important issue and one that health care professionals asked us to deal with very early on in the pandemic because they were concerned about Ontario becoming overwhelmed in the same way that Italy was, for example. So a draft protocol was developed that had been sent to hospitals, but this is really only meant for internal purposes but I know that a numberand is not being acted upon. It was met with a lot of concern by a number of disabilities groups and seniors groups and so we reached out to the table at the Health Command Table reached out to the Ontario Human Rights Commission to obtain their assistance in redrafting a protocol and I understand there is still discussions ongoing with the Ontario Human Rights Commission in order to make sure that we reach a level place where everyone is dealt with fairly in terms of dealing with the triage protocol whether it’s for people with disabilities, for seniors, racialized communities, indigenous communities making sure that it’s there and level for all people.

So those discussions are ongoing. I’m not sure exactly how long they will be continuing but that will come forward at the appropriate time.

As we understand it, in that statement, you suggest that the Government now is having ongoing discussions with the Ontario Human Rights Commission over what a critical care triage protocol should include, to ensure that it is fair to all, including people with disabilities, seniors, members of Indigenous communities and members of racialized communities. Yet from a letter to you today from the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, it clearly appears that no such discussions with the Government are in fact taking place. To the contrary, Chief Commissioner Chadha makes it clear that you have not even answered her two recent letters on this very topic, dated October 16, 2020 and November 6, 2020. Chief Commissioner Chadha states as follows in her November 7, 2020 letter to you:

I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.
I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or triaging critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.

Today’s letter to you from the Chief Commissioner of the Ontario Human Rights Commission clearly appears to contradict what you said to the media on a very important point regarding a potential life-and-death issue. The Government can hardly claim it has ongoing discussions with the Ontario Human Rights Commission on the terms of a possible critical medical care triage protocol if the Government has not even answered the Chief Commissioner’s two recent letters to you on that very topic in over a months since you received the latest of those letters. This is all the more disturbing because it is our understanding that the issue of what to do about critical care triage shifted directly to your Ministry and your Government after the Bioethics Table submitted its report and recommendations to the Government and the Ontario Human Rights Commission in the middle of September. Put simply, since then, this issue has been on your plate.

Your Government’s approach to this issue continues to be riddled with protracted, harmful and unjustified secrecy and evasiveness. Last winter, your Government did not make public the fact that it had directed its Bioethics Table to prepare a proposed critical care triage protocol, and that a March 28, 2020 protocol was sent to all Ontario hospitals. The disability community learned about this through a leak.

We and others called for months for that discriminatory protocol to be cancelled. Yet your Government did not make public the fact that it had finally cancelled that March 28, 2020 protocol until it was pressed on this issue in Question Period on November 5, 2020.
You have not answered any of our letters to you on this issue, dated September 25, 2020, November 2, 2020 or November 9, 2020. No one from your Ministry or from Ontario Health (part of the Government) has ever reached out to us to discuss anything regarding the issue of critical medical care triage in the many months that we have publicly been raising serious concerns over this issue.

As noted above, according to today’s letter to you from the Ontario Human Rights Commission’s Chief Commissioner, you have not even answered the Commission’s two letters to you this fall. Your Government has repeatedly refused to make public the report and recommendations of the Government-appointed Bioethics Table, which you received almost three months ago.

When your Government was clearly and directly asked to release those recommendations to the public in Question Period in the Legislature on November 5, 2020 and again on December 3, 2020 (the International Day for Persons with Disabilities), your Government’s seemingly scripted answers were demonstrably evasive. When asked there, your Government did not agree to make those recommendations public. Similarly, your Government refused to do so in response to inquiries earlier this fall from Radio Canada and the Toronto Star.

The Ontario Human Rights Commission has repeatedly called on you to make public the Bioethics Table’s report and recommendations, and to consult with affected stakeholders in the human rights community. We would count ourselves among them. Your own Bioethics Table has called on you to make public their recommendations. On December 3, 2020, an open letter to you from fully 64 organizations and groups called on you to make those recommendations public now.

The Government has never offered a word of explanation or justification for its protracted secrecy here. It has not explained how that secrecy could be squared with the Premier’s promise to be open and transparent about the Government’s response to the COVID-19 pandemic, and his promise to protect the most vulnerable.

At the Premier’s December 3, 2020 news conference, you stated that a protocol would be made public at the appropriate time. Minister, now is the appropriate time! More and more people are contracting COVID-19. Hospitals are getting closer and closer to the breaking point. US media reports that medical rationing is on the verge of becoming necessary in some places, if it is not already the case now. Moreover, even if the Government is still working on this issue, we need to now see the recommendations that the Bioethics Table submitted to you three months ago. We need to see to what extent, if any, the Bioethics Table implemented recommendations that disability advocates and experts presented to them. On this life-and-death issue, Ontarians, including vulnerable people with disabilities do not have the luxury of time!

We need to now have the opportunity to directly speak to and consult with those within your Government who are working on this issue. Last summer, we only got to speak to the Bioethics Table. That is a voluntary body, outside Government, that only made non-binding recommendations to the Government. It is not the body that decides what the final triage protocol would be.

We ask you to let us know who, within the Government, is working on this issue, and who has lead responsibility for it? In a number of other areas, the Government has established command tables. Have you established a triage command table, or some such working group? If so, what is their mandate? Who is on this committee or in this group? Which members of the Bioethics Table, if any, are on that internal Government committee or working group? What are their time lines for action?

Last winter, your Government was correct to conclude that it needs to get ahead of the game, and to have a critical care triage protocol in place, in case it is needed. Our shared hope that triage will not be needed does not diminish the need for to be ready, just in case.

Ontarians cannot afford to simply trust your Government’s speculative claim in the Legislature on November 5, 2020 that the situation in Ontario should not require resort to critical care triage. Since making that claim, daily rates of infections have continued to break records, day after day. Various communities have been locked down. Restrictions during lock-downs have been gradually made more strict. The Government’s modelling predicts much worse to come. Media reports show that hospitals are being stretched.

The Government has claimed that it has expanded the number of hospital beds in the face of the COVID-19 pandemic. Does each of these new beds qualify as a fully-equipped and fully staffed intensive care bed, with all the intensive care doctors, nurses, equipment, environmental controls and ventilator technicians needed to effectively support those beds?
Please answer our important inquiries in this letter. Please fulfil Premier Ford’s written election promises to 2.6 million Ontarians with disabilities in his May 15, 2018 letter to the AODA Alliance, that:

Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance

CC: Premier Doug Ford [email protected]
Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected]
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]

December 7, 2020 Letter from Ontario Human Rights Chief Commissioner Ena Chadha to Ontario Health Minister Christine Elliott

December 7, 2020

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

Dear Minister Elliott:

RE: Follow-up on critical care triage protocol

I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.

I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or triaging critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.

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
Hon. Doug Downey, Attorney General
David Corbett, Deputy Attorney General, Ministry of the Attorney General OHRC Commissioners

December 10, 2020 Email from Ontario Human Rights Commission to AODA Alliance and Other Human Rights Organizations

December 15, 2020

Dear Roundtable Participant:

The Ontario COVID-19 Bioethics Table invites your participation in a roundtable on December 17th 2020 to review and provide feedback on the Critical Care Triage during Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (hereafter the Proposed Framework). The roundtable will be attended by representatives from the Ministry of Health, Ontario Health and the Ontario Critical Care Command Table who will be present as observers.

The Proposed Framework with recommendations for next steps was submitted to the Ministry of Health and Ontario Health in September 2020. It is a green document within the overall Ontario COVID-19 pandemic response. An initial draft framework was developed and released to Ontario hospitals on March 28th. It was never implemented and was subsequently rescinded on October 29th by Ontario Health. The Proposed Framework has evolved iteratively through April to August 2020 based on a continuing review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, and feedback from health system stakeholders. All inputs were carefully considered by the Bioethics Table and incorporated into the Proposed Framework to the greatest extent possible. A summary of key challenges is included below.

The following questions will guide the roundtable discussion: * What are the strengths of the Proposed Framework?
* What aspects of the Proposed Framework could benefit from further revision? * What changes would you propose?

Please note that a draft protocolized version of the Proposed Framework has been created by the Ontario Critical Care Command Centre and shared with hospitals for their feedback. This draft institutional protocol is substantially the same as the Proposed Framework document but also includes additional details about institutional procedures, data collection forms, and communication tools. Any changes to the Proposed Framework following from the roundtable discussion will also apply to the draft institutional protocol.

We look forward to your participation and feedback. By the end of the roundtable, we hope we will be able to reach general agreement on most aspects of the Proposed Framework. If you are unable to attend the roundtable, we welcome your written feedback. Please send to Dianne Godkin ([email protected]) no later than noon on December 17. We hope to complete the consultation by December 18. Sincerely,

Jennifer Gibson, Co-Chair, Bioethics Table Dianne Godkin, Co-Chair, Bioethics Table

Summary of Key Changes in Proposed Framework

Overall Context
* Greater clarity on the context, scope and limits of critical care triage in the COVID-19 pandemic(i.e., onlyintended for use in a major surge in demand for critical care and only to be used if directed by the appropriate authority)
* Significant reformulation of triage as not just a clinical problem of scarce resources, but also fundamentally a broader social problem encompassing human rights and just reparation in the context of health and social inequities

Ethical Principles
* Explicit emphasis on human rights and recognition of pre-existing health and social inequities in the health system
* More explicit identification of the ethical principles underpinning the approach to triage —
original document was anchored to three principles (utility, proportionality, fairness); the current version specifies nine principles emphasizing equity and non-discrimination

Triage Process
* Greater clarity on the nature, purpose, and rationale for explicit clinically-based triage criteria
* Greater clarity and precision about what is and what is not permissible in the triage process
* Specification of a single prioritization criterion short-term mortality risk at <80%, <50% or <30% and temporal parameters of short-term mortality risk’ to mitigate risk of categorical exclusion of patients based on factors unrelated to their critical illness * Emphasis on individual assessment of each patient
* Underlining of importance of ensuring clinical tools do not violate human rights

Legal Considerations
* Inclusion of a stronger statement about the need for an emergency order to protect clinicians from civil and criminal liability * Recommendation that the Proposed Framework undergoes independent legal review

Due Process Elements
* Clarification of duties to patients, including but not limited to accommodation, culturally safe and appropriate practices, presence of trusted advisor/community member
* More detailed description of due process elements throughout the triage process * Clarification of scope and mechanism of appeal
* Clarification of training/education content areas

Oversight
* Clarification of need for a consistent and standardized’ approach across province and institutional settings and conditions for triggering implementation of triage approach and transition between levels * Specification of roles and accountabilities
* Clarification of the need and scope for systematic data collection to support monitoring and iterative review of triage approach

Recommendations
* Specification of next steps to foster transparency and trust

December 11, 2020 Email from , AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chair Jennifer Gibson

To: Jennifer Gibson, Co-Chair Bioethics Table
From: David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance Date: December 11, 2020

Dear Jennifer,

I am writing to respond to your email just now, in which you suggest that the triage protocol that was sent to me is confidential. You wrote in material part:

I do also wish to pick up on your question yesterday about whether the document is public. The triage framework document has a ‘confidential’ watermark because while the Bioethics Table has a green-light to circle back with human rights stakeholders, the document has not been authorized for public release. I feel hopeful that we will have greater clarity on this after the round table next week.

With great respect, I am under no obligation to keep that document confidential and give no undertaking to keep it confidential. I was not yesterday asking if it is confidential. I stated that I am proceeding on the basis that it is not. Yesterday I wrote as follows in an email addressed to the Ontario Human Rights Commission, you and others:

We will proceed on the basis that we are not undertaking any confidentiality in connection with this document and are free to make it public.

No one asked me for a commitment of confidentiality before sending me the new Bioethics Table proposed critical care triage protocol. Had I been so requested, I would not have given a confidentiality commitment. The Government cannot retroactively and unilaterally impose a confidentiality obligation upon me after the fact.

Making this even more obvious, after I received the email (on which you were copied) yesterday from the Ontario Human Rights Commission forwarding the new triage document, I immediately replied to all that I saw no attachment. I asked that the document in issue be re-sent to me. It was in that email that I stated quite unequivocally that we would treat this document as public, as quoted above. It was in response to that very email that the attachments were thereafter forwarded to me.

Our position could take no one by surprise. As you will recall, last summer, we gave no earlier confidentiality commitment regarding the revised draft triage protocol on which we were invited to comment over the summer. To the contrary, we made it clear that we would not agree to keep it confidential. In the face of that position, we were provided last summer’s earlier revised draft triage protocol. We publicly posted that earlier document online last July.

Moreover, for months, we have repeatedly and publicly been critical of the undue, excessive and protracted Government secrecy surrounding the Government’s approach to the issue of critical care triage. We would not now agree to act to further that unjustified secrecy.

Beyond that, from the emails we received yesterday, it appears that the Government has already sent this document or something including it to Ontario hospitals. As such, the proverbial horse has left the stable.

You stated that the document has a watermark (whatever that is) stating that it is confidential. I should note that the accessible MS Word version which I have opened does not include the word confidential. If it has such a watermark, it is not accessible. That MS Word version of this new draft protocol was sent to me specifically as an accommodation i.e. so that I would have an accessible version of it, rather than a pdf. It is commonly known that I am blind.

In any event, such a watermark, even if accessible, would not be apparent until after the document was opened. That does not retroactively create any obligations of confidentiality on my part.

Undoubtedly, this document has been sent to us at the Ontario Governments request, for the purpose of gathering input for the Government. The Government did not ask us in advance to agree to confidentiality in relation to this document. Indeed, no one at the Ministry of Health has had any direct contact with us at all about this entire triage issue, despite our writing the Minister of Health several times about the issue. As I understand it, the Bioethics Table, while appointed by the Government, is not itself part of the Government of Ontario.

We look forward to reviewing this new document and providing feedback on it. To help our review of it, can you explain what substantive changes were made as a result of our feedback to the Bioethics Table last summer?

Please confirm that you received this email. Stay safe.

December 15, 2020 Letter from AODA Alliance Chair David Lepofsky to Ontario Health Minister Christine Elliott

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

December 15, 2020

To: The Hon. Christine Elliott, Minister of Health
Via email: [email protected]
Ministry of Health
5th Floor
777 Bay St.
Toronto, ON M7A 2J3

Dear Minister,

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

We are following up on our four unanswered letters to you dated September 25, November 2, November 9 and December 7, 2020. These ask about the Ford Government’s plans for deciding which patients needing life-saving critical medical care would be refused that care, if the record-breaking surge in COVID-19 cases overloads Ontario hospitals and requires rationing or triage of critical care beds and services. Please respond to us.

We have been waging a frustrating, uphill campaign for eight months to ensure that patients with disabilities suffer no disability discrimination in access to critical care if hospital overloads necessitate triage. Events since we last wrote demonstrate that our concerns are amply justified. Excitement over the COVID vaccine does not reduce our concerns. The pandemic is still raging out of control.

As a positive step forward, on Thursday, December 10, 2020, the Ontario Human Rights Commission sent us and several other human rights advocates the Government-appointed Bioethics Table’s September 11, 2020 recommendations for a critical care triage protocol. The Bioethics Table is a purely advisory body external to the Government. We have been campaigning for three months to get the Government to make those recommendations public.

1. Bioethics Table’s Recommendations A Helpful Step Forward, But Problems Still Remain

We need time to study the external Bioethics Table’s September 11, 2020 recommendations. However, here are several important preliminary points. First, The Bioethics Table now commendably agrees with us that the Clinical Frailty Scale (CFS) should not be used to decide which patients should be refused critical care, if triage becomes necessary. It recognizes that to use the Clinical Frailty Scale in critical care triage would impose disability discrimination against patients with disabilities, and that research does not support the use of that Scale as a triage tool across the full spectrum of ages from 18 to end of life. We applaud the Bioethics Table for listening to this important message from disability advocates and experts last summer.

Second, it is good that for the first time, these recommendations give explicit and clear emphasis to human rights and the importance of adopting a non-discriminatory approach to critical care triage that is mandated in law. It is positive that, in response to our detailed submissions on point, the Bioethics Table has incorporated some principles to provide due process to patients at risk of being denied life saving critical care (though not all the due process safeguards that we contend are necessary).

As well, it is very commendable that for the first time, the Bioethics Table, in its September 11, 2020 recommendations, implements a number of elements from the AODA Alliance’s April 14, 2020 Discussion Paper on Critical Care Triage, such as:

A patient’s quality of life must never be used as a factor in triage decisions, even though it may continue to inform an individual patient’s decision-making about their own care.
Triage decisions should not consider the costs that a patient’s future care will pose should they survive their episode of critical illness.
Patients who have their own, pre-existing ventilator used to treat a pre-existing chronic condition must be permitted to continue to use their personal ventilator. Their own, pre-existing ventilator must not be re-allocated to other patients.
Whether an individual’s underlying disease, disability, or illness is associated with a shortened life expectancy compared to average lifespans independent of their predicted short-term mortality risk should not be used as a factor in triage decisions (e.g., a person with a mental health diagnosis on average lives 7 to 10 years less compared to the general population).
A patient’s need for disability-related accommodations or assistance (e.g., a deaf patient who needs Sign Language interpreters to effectively communicate with hospital staff) should never be used as a factor in triage decisions.
Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).

As Minister, important conclusions follow. The March 28, 2020 clinical triage protocol that your Government sent to all hospitals last spring and left in place for some seven months was in fact replete with disability discrimination, according to your own Bioethics Table. To have let this happen in the midst of a pandemic is extremely disturbing.

Had it not been for relentless human rights advocacy efforts, your Government would have left that discriminatory protocol in place, rather than belatedly rescinding it on October 29, 2020. We should not have had to go to such lengths, especially in the midst of a pandemic.

Finally, last spring, The AODA Alliance and the ARCH Disability Law Centre publicly alerted the Government in writing to fundamental flaws with the Bioethics Table’s approach to critical care triage, that pervaded the March 28, 2020, triage protocol. Yet when the Bioethics Table thereafter came up with a revised draft last summer (previous to its most recent September 11, 2020 recommendations), it did not address our major concerns. What got the Bioethics Table to eventually listen to us and take some corrective action is talking directly to us at a series of summertime virtual meetings. This shows that it is vital for those inside the Government who are now making actual decisions in this area to hear directly from us, and not to simply receive written submissions or to receive our feedback second hand..

2. Important Concerns Remain in the Proposed Approach To Critical Care Triage

Despite our having eventually made some progress, there remain vital and urgent issues that need to be addressed, and that we are now studying. It is unclear to us what the Bioethics Table is precisely recommending on the vital issue of how critical care triage decisions should be made, or on whether it will ensure that disability discrimination does not creep in through the back door. It is not clear to us that it is correct to treat such decisions as entirely medical decisions. Additional due process protections are needed beyond those that the Bioethics Table commendably recommended.

3. Will the Government Respect the Rule of Law in the Critical Care Triage Issue

As far as we have seen, the Government has not brought forward any legislation or regulations to provide a proper legal mandate for a critical care triage protocol that authorizes refusal of life-saving critical care. Our September 25, 2020, letter to you and the Ontario Human Rights Commission’s October 16, 2020 letter to you both raise this issue. It appears that the Bioethics Table’s September 11, 2020 report to you also raises a concern in this area. To date, the Government has not responded.

This is even more important given the need to legislate a right of appeal for patients facing the possibility of being denied critical care triage that they need. The Bioethics Table’s September 11, 2020, report identifies the need for an appeal process. We agree with part of it but believe it needs to go further. Either way, a legislated mandate will be needed.

We therefore ask:

#1. Will your Government bring forward legislation or regulations needed to provide a legal foundation for any critical care triage protocol that may be instituted, including rights of appeal, and will there be public hearings on such legislation since this has such great impact on the very right to life?

4. What is the Government’s Internal Critical Care Command Table?
We just learned that within your Government, there is now in existence a Critical Care Command Table. This group must have a different role than the Bioethics Table with whom we had dealings last summer. The Bioethics Table is not part of nor situated within the Ontario Government. The Bioethics Table is purely advisory. It gives advice to the Government. The Government itself makes decisions on issues such as the rules and procedures to be followed if critical medical care needs to be rationed.

We have been trying to talk directly with your Government about this critical care triage issue since last April. The only contact we have had since then was with the Ontario Human Rights Commission and the external Bioethics Table. Those bodies have no plenary decision-making authority over this issue.

Can you please tell us the following:

#2. What are the names and titles of the members of the Government’s internal Critical Care Command Table? Who is the lead or Chair of that committee?

#3. When was the Government’s internal Critical Care Command Table established, and what is its mandate?

#4. What is the Government’s internal Critical Care Command Table’s plan of action to develop and finalize a new Ontario critical care triage protocol, and what is the deadline for it to finish this work?

#5. The Bioethics Table recommended on September 11, 2020, that The Government appoint a multidisciplinary consensus panel to further develop and refine the clinical factors and tools to be used for critical care triage. Has this been done? If so, when was it appointed? When and to whom will it report? Who is on that panel?

5. Let Us Now Speak Directly to the Government’s Internal Critical Care Command Table

In the nine months since the pandemic began, no one at the Ministry of Health or Ontario Health has spoken to us about our critical care triage concerns, or other disability health care issues in the pandemic. It is essential that we speak directly to decision-makers within the Government. Layers of bureaucracy should not be artificially erected as a barrier.

The external Bioethics Table learned a great deal from direct meetings with us and our disability community colleagues.

However, the Bioethics Table’s September 11, 2020 recommendations do not include all the advice that we gave to that external Table. We want to be able to give the Government all our advice, not just the points the Bioethics Table decided to include.

We therefore ask:

#6. Please immediately arrange for us to virtually meet with and provide direct input to your Government’s internal Critical Care Command Table,.

6. Make Public All Triage Documents the Government Shared with Ontario Hospitals

It is good that we have at last gotten some information about the draft new critical care triage protocol that the Government is considering. We need to see all the information about this draft that the Government shared with Ontario hospitals or other health care providers. We gather that the Government has sent some or all hospitals more documents or information about the new draft triage protocol than we in the human rights community have been given. We should have as much access to information about this as health care providers have.

We therefore ask:
#7. Please immediately share with us and make public all the documents on critical care triage, including any drafts that the Government has sent to any or all hospitals or other health care providers.

#8. When did the Government send any or all of the external Bioethics Table’s September recommendations to any or all hospitals or health care providers this fall?

7. End Protracted Government’s Secrecy Surrounding Critical Care Triage

As our unanswered September 25, November 2, and November 9, 2020 letters to you show, it is important for the Government to end its protracted secrecy in this area. For example, your Government unjustifiably kept secret from us and the public for three months the Bioethics Table’s September 11, 2020 recommendations. Now that we have seen them, there is absolutely nothing in them that warranted any secrecy. They contain no nuclear codes or trade secrets.

Your Government’s concealment of the Bioethics Table’s September 11, 2020 recommendations for three months hurt the public. Given the worrisome rise in daily COVID-19 infections and our hospitals being filled with patients, you should have let us study those recommendations three months ago, so that by now you’d already have our advice on them. We must now scramble to analyze them under extreme and entirely avoidable time pressure.

After we received the external Bioethics Table’s September 11, 2020 recommendations, there was an inappropriate effort to retroactively gag us from making it public. As we explained in our December 11, 2020, email to Prof. Jennifer Gibson, Co-Chair of the external Bioethics Table, we are bound by no duty to keep it secret. We anticipate that the effort to try to retroactively restrict us from disclosing it to others very likely emanated from the Government and not the Bioethics Table.

8. Conclusions

We need you to personally intervene now to put your Government’s approach on a proper track. Minister, you have a respected reputation for being committed to protecting society’s most vulnerable, including people with disabilities. This issue has been seriously mishandled by your Ministry’s officials, or by Ontario Health, or both.

We would welcome the opportunity to speak to you and to assist you in properly addressing this difficult issue.

Sincerely,

David Lepofsky, CM, O. Ont
Chair, Accessibility for Ontarians with Disabilities Act Alliance

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

cc:
Premier Doug Ford [email protected]
Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected].ca
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected] Jennifer Gibson, Co-Chair, Bioethics Table [email protected] Dianne Godkin, Co-Chair, Bioethics Table [email protected]

December 15, 2020 Email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chairs

To:
Jennifer Gibson and Dianne Godkin
Co-Chairs, Ontario Bioethics Table
Via email: [email protected]; [email protected]

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

December 15, 2020

Re: Critical Care Triage Protocol

Thank you for inviting the AODA Alliance to take part in a December 17, 2020, roundtable with the Government-appointed Bioethics Table on its newest September 11, 2020 draft critical care triage protocol. It proposes how decisions would be made on patients needing life-saving critical care if it becomes necessary to ration or triage critical care services because the skyrocketing COVID-19 pandemic overloads Ontario hospitals. Thank you also for incorporating a number of key points that disability advocates and experts urged upon you last summer in your most recent September 11, 2020 recommendations to the Ford Government.

We regret that we will not be fully prepared to give all our ultimate feedback at this roundtable, due to the short preparation time and the issues’ complexities. The triage proposal itself is 36 pages long. On the evening of December 14, 2020, you also sent a substantial series of additional materials. We will not have had time to review them all. If any are in pdf format, please provide them in accessible formats such as MS Word. We have not had time to check them for accessibility.

Given the number of people you have invited to take part, there will also not be time for all to give detailed input during that meeting. Nevertheless, we will do the best to help as much as we can in the allotted time.

To help in preparation for this meeting, may we bring the following matters to your attention:

1. We understand from the Ontario Human Rights Commission’s December 10, 2020, email that Ontario hospitals were sent more documents or information about the Bioethics Table’s September 11, 2020 recommendations than was provided to those of us invited to take part in your upcoming December 17, 2020, roundtable. It is important for us to see all the material that hospitals have seen. Can you provide us with all that information? If you do not have authority to do so, can you support our request of the Minister of Health to do so, as set out in our letter to the Minister of today’s date, copied to you?

2. We are rushing to read and fully understand the 36-page document that was provided to us last Friday. From it, it is not clear how a doctor is precisely being instructed to decide who will be refused critical care services if triage becomes necessary. As was the case last summer during our discussions of the now-discarded Clinical Frailty Scale, it would help us all to receive, in advance, a clear step-by-step explanation of how this would be done. It would also similarly help to be given example fact situations to illustrate how it would be applied. We expect that many, if not most, of those invited to take part in this roundtable will need this clarification in advance in order to prepare meaningful feedback for you at that roundtable.

3. As our letter of today’s date to the Minister of Health explains, we have not previously been told about the existence or role of the Government’s internal Critical Care Command Table. Can you let us know what the membership and mandate of that committee is? We are eager to also know which, if any, members of the external Bioethics Table also sit on or assist in any way the Government’s internal Critical Care Command Table.

4. As our letter of today’s date to the Health Minister also explains, while we are happy to speak with your group about this triage issue, your group is external to the Government. Your group merely gives advice. It makes no decisions. We want to speak directly to and meet with those inside the Government who are making decisions in this area.

We would appreciate it if you would support our request to the Government in this regard, set out in today’s letter to the Minister. We appreciate that your external Bioethics Table benefitted from and drew on a number of important recommendations that we presented during our virtual meetings with you over the summer. You are therefore in a pivotal position to explain to the Government how beneficial and important it is for them to hear directly from us.

We would be happy to provide any further information that might assist you in addressing these issues.

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]




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The Ontario Bioethics Table’s Secret September 11, 2020 Recommendations on How to Ration or “Triage” Life-Saving Critical Medical Care if COVID-19 Cases Overload Ontario Hospitals are Finally Revealed, and Incorporate a Number of Disability Advocates’ Proposals – But We’re Not Out of the Triage Woods Yet!


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

The Ontario Bioethics Table’s Secret September 11, 2020 Recommendations on How to Ration or “Triage” Life-Saving Critical Medical Care if COVID-19 Cases Overload Ontario Hospitals are Finally Revealed, and Incorporate a Number of Disability Advocates’ Proposals – But We’re Not Out of the Triage Woods Yet!

December 15, 2020

SUMMARY

What a major partial breakthrough we have had in our 9-month campaign to ensure that patients with disabilities face no discrimination in access to life-saving critical care if the uncontrolled surge in COVID-19 infections requires the rationing or triage of critical care in Ontario hospitals. At the end of the day last Thursday, December 10, 2020, we finally got to see the previously-secret September 11, 2020 recommendations on critical care triage from the Government-appointed Bioethics Table. Right here and now, we make these recommendations public. You can download the Bioethics Table’s September 11, 2020 recommendations on how to conduct critical care triage by clicking on this link: https://www.aodaalliance.org/wp-content/uploads/2020/12/Sept-11-2020-Draft-Critical-Care-Triage-Recommendations-from-Ontario-Bioethics-Table.docx

This Update gives you all the background leading to this interim breakthrough. It is going to take us some time to fully analyze the Bioethics Table’s September 11, 2020 recommendations. However, from our first quick review, it is clear that last summer, the Bioethics Table adopted a number of key points made by disability community advocates and experts including, among others, the AODA Alliance and the ARCH Disability Law Centre.

The Bioethics Table commendably that the discriminatory Clinical Frailty Scale, which the Government had previously directed all hospitals to use for triage, should NOT be used, because it is discriminatory against patients with disabilities. The Bioethics Table recommended that human rights principles should form an important part of any triage protocol. It recommended a number of key restrictions on triage decisions for which we advocated in the AODA Alliance’s April 14, 2020 Discussion Paper on this issue. It called for there to be due process protections for patients with disabilities who are at risk of being refused life-saving critical care due to rationing, though not all the due process safeguards for which we advocate.

These are all very important steps forward. However, we are not yet out of the woods. There remain a number of important issues that we are exploring. It is not clear to us exactly how decisions would be made on who is refused life-saving critical care that they medically need. It is not clear that disability discrimination has been prevented, despite all those helpful improvements for which we commend the Bioethics Table.

From our review of this document, it is crystal clear that the Ford Government had no excuse or justification for keeping it secret for three months. Precious time has been inexcusably lost in the midst of a dangerous pandemic.

The AODA Alliance will be taking part in a roundtable on December 17, 2020 on this topic, organized by the Ontario Human Rights Commission. We thank the Ontario Human Rights Commission for helping press the Ford Government on this issue. Our combined pressure helped get us to this new stage.

Despite all the excitement about the new COVID-19 vaccines, the risk of critical care triage gets greater and greater as daily infections rise. Today Ontario reported a record-breaking 2,275 new cases. We will have more to say on this topic after we roll up our sleeves and dig further into the Bioethics Table’s September 11, 2020 recommendations.

Below we provide you with a short chronology of the major events on this long and winding road, including the new events unfolding over the past 10 days leading up to this news. We also set out in chronological order the six letters that document these events as they unfolded.

  1. The December 7, 2020 letter from the AODA Alliance to Health Minister Christine Elliott
  2. The December 7, 2020 letter from the Ontario Human Rights Commission’s Chief Commissioner to Health Minister Christine Elliott
  3. The December 10, 2020 Letter from the Ontario Human Rights Commission to the AODA Alliance and Other Human Rights Organizations
  4. The December 11, 2020 email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-chair Jennifer Gibson
  5. The December 15, 2020 letter from the AODA Alliance to Health Minister Christine Elliott, and
  6. The December 15, 2020 email from AODA Alliance Chair David Lepofsky to the Bioethics Table Co-chairs.

For more background on this issue, check out:

  1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government –appointed Bioethics Table.
  2. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter and its November 9, 2020 letter to Health Minister Christine Elliott
  3. 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.
  4. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  5. 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
  6. 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

Short Chronology of the Ontario Critical Care Triage Saga

(Note: this does not list every letter or other action taken on this issue by disability advocates, including the AODA Alliance)

February 2020: With the COVID-19 pandemic approaching Canada, the Ontario Government appoints an external advisory Bioethics Table to propose how to ration or triage critical medical care if hospitals get overloaded. The public is not told about this. Disability community is not consulted.

March 28, 2020: the Bioethics Table recommends a critical care triage protocol. The Ford Government sends it to all Ontario hospitals. It is not made public. The public is not told this is going on.

April 8, 2020: After word of the triage protocol is leaked to the disability community, an open letter to the Ford Government is made public, condemning the March 28, 2020 protocol as discriminating based on disability.

April 21, 2020: The Ford Government says the March 28, 2020 triage protocol is only a draft, even though it was not marked “draft”. The Government says human rights and community experts will be consulted on it.

Summer 2020: The Bioethics Table invites some disability advocates and experts to a series of virtual meetings to get input. A revised draft triage protocol is shared, which the AODA Alliance makes public on its website on July 16, 2020.

August 31, 2020: Disability advocates and experts make their closing presentation to the Bioethics Table and send in detailed written submissions.

September 11, 2020: the Bioethics Table submits its revised recommendations on critical care triage to the Ford Government. These are shared with the Ontario Human Rights Commission but not the public, despite the fact that the Ontario Human Rights Commission and the Bioethics Table urge the Government to make this report public.

September to December 2020: the Ford Government refuses to make public the Bioethics Table’s September 11, 2020 recommendations, despite requests from the disability community, the Opposition in the Legislature, the Bioethics Table, the Ontario Human Rights Commission and the media. No explanation for this secrecy is provided.

October 29, 2020: The Ford Government writes Ontario hospitals to belatedly cancel the March 28, 2020 triage protocol and direct that it not be followed. The Government does not make this action public.

November 5, 2020: In the Legislature during question Period, the NDP presses the Government to make public the Bioethics Table’s recommendations and to cancel the March 28, 2020 triage protocol. In response to this question, the Government reveals for the first time that it had cancelled the March 28, 2020 critical care triage protocol. It says that it “may” send a new critical care triage protocol to health providers in the future if conditions deteriorate significantly but doubted that such conditions would happen.

December 3, 2020: 64 organizations mark the International Day for Persons with Disabilities by making public an open letter to the Ford Government calling for the Government to make public the Bioethics Table’s September 11, 2020 triage protocol recommendations. The Government is confronted on this issue in the Legislature during Question Period.

December 3, 2020: During the Premier’s midday news conference, Health Minister Christine Elliott tells the media there are discussions now ongoing with the Ontario Human Rights Commission on what the triage protocol should provide.

December 7, 2020: The Chief Commissioner of the Ontario Human Rights Commission writes Health Minister Christine Elliott in substance contradicting her claim that discussions are now ongoing with the Ontario Human Rights Commission on the triage protocol. The Chief Commissioner states that the Minister has not even answered the Commission’s October 16 and November 6, 2020 letters to the Minister on this topic. (Letter set out below.)

December 7, 2020: The AODA Alliance writes Health Minister Christine Elliott documenting that there is an unexplained and troubling contradiction between the Minister’s December 3, 2020 statement to the media and the Human Rights Commission’s December 7, 2020 letter to the Minister. The Minister is again pressed to make public the Bioethics Table’s September 11, 2020 triage recommendations. (Letter set out below.)

December 10, 2020: The Ontario Human Rights Commission writes the AODA Alliance and other human rights organizations to provide a copy of the Bioethics Table’s September 11, 2020 triage recommendations. A December 17, 2020 roundtable is announced to get input on those recommendations. (Letter set out below.) We believe that the combination of all our efforts and those of the Ontario Human Rights Commission over the previous week helped get the Government to finally let the September 11, 2020 Bioethics Table recommendations see the light of day.

December 11, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Chair to resist a claim that the Bioethics Table’s September 11, 2020 recommendations remain confidential. The AODA Alliance will treat them as public. (Letter set out below.)

December 15, 2020: AODA Alliance again writes Health Minister Christine Elliott to ask the Government to make public any documents it has sent hospitals on barrier’s September 11, 2020 triage recommendations, to ask to speak directly with the Government’s internal Critical Care Command Table, and to urge an end to the Government’s protracted secrecy in this area. (Letter set out below.)

December 15, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Co-Chairs to ask for further information to help human rights organizations prepare for December 17, 2020 roundtable. (Letter set out below.)

December 7, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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

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

December 7, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

We write about your public statement to the media on December 3, 2020, the International Day for Persons with Disabilities. As we clearly understood it, you said that your Government is now holding ongoing discussions with the Ontario Human Rights Commission on a proposed protocol for rationing or triage of life-saving critical medical care, if skyrocketing COVID-19 infections require rationing of critical care in Ontario hospitals. The text of your full exchange with a Global News reporter, available on Youtube, during Premier Ford’s December 3, 2020 news conference, is as follows:

“Miranda Anthistle: Hi there, thank you for my question.

Doug Ford: Hi. How are you?

Miranda Anthistle: Ok, so the first one is, the Ontarians With Disabilities Act Alliance has written an open letter to your government about transparency on how decisions will be made when it comes to prioritizing life-saving treatments and who will get them if hospitals become overwhelmed. So will this information be released and how does the government plan on prioritizing life-saving treatments?

Doug Ford: Pass that to the Minister:

Christine Elliott: Well this is a very important issue and one that health care professionals asked us to deal with very early on in the pandemic because they were concerned about Ontario becoming overwhelmed in the same way that Italy was, for example. So a draft protocol was developed that had been sent to hospitals, but this is really only meant for internal purposes but I know that a number…and is not being acted upon. It was met with a lot of concern by a number of disabilities groups and seniors groups and so we reached out to the table at the Health Command Table reached out to the Ontario Human Rights Commission to obtain their assistance in redrafting a protocol and I understand there is still discussions ongoing with the Ontario Human Rights Commission in order to make sure that we reach a level place where everyone is dealt with fairly in terms of dealing with the triage protocol whether it’s for people with disabilities, for seniors, racialized communities, indigenous communities making sure that it’s there and level for all people.

So those discussions are ongoing. I’m not sure exactly how long they will be continuing but that will come forward at the appropriate time.”

As we understand it, in that statement, you suggest that the Government now is having ongoing discussions with the Ontario Human Rights Commission over what a critical care triage protocol should include, to ensure that it is fair to all, including people with disabilities, seniors, members of Indigenous communities and members of racialized communities. Yet from a letter to you today from the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, it clearly appears that no such discussions with the Government are in fact taking place. To the contrary, Chief Commissioner Chadha makes it clear that you have not even answered her two recent letters on this very topic, dated October 16, 2020 and November 6, 2020. Chief Commissioner Chadha states as follows in her November 7, 2020 letter to you:

“I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.

I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or “triaging” critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.”

Today’s letter to you from the Chief Commissioner of the Ontario Human Rights Commission clearly appears to contradict what you said to the media on a very important point regarding a potential life-and-death issue. The Government can hardly claim it has ongoing discussions with the Ontario Human Rights Commission on the terms of a possible critical medical care triage protocol if the Government has not even answered the Chief Commissioner’s two recent letters to you on that very topic in over a months since you received the latest of those letters. This is all the more disturbing because it is our understanding that the issue of what to do about critical care triage shifted directly to your Ministry and your Government after the Bioethics Table submitted its report and recommendations to the Government and the Ontario Human Rights Commission in the middle of September. Put simply, since then, this issue has been on your plate.

Your Government’s approach to this issue continues to be riddled with protracted, harmful and unjustified secrecy and evasiveness. Last winter, your Government did not make public the fact that it had directed its Bioethics Table to prepare a proposed critical care triage protocol, and that a March 28, 2020 protocol was sent to all Ontario hospitals. The disability community learned about this through a leak.

We and others called for months for that discriminatory protocol to be cancelled. Yet your Government did not make public the fact that it had finally cancelled that March 28, 2020 protocol until it was pressed on this issue in Question Period on November 5, 2020.

You have not answered any of our letters to you on this issue, dated September 25, 2020, November 2, 2020 or November 9, 2020. No one from your Ministry or from Ontario Health (part of the Government) has ever reached out to us to discuss anything regarding the issue of critical medical care triage in the many months that we have publicly been raising serious concerns over this issue.

As noted above, according to today’s letter to you from the Ontario Human Rights Commission’s Chief Commissioner, you have not even answered the Commission’s two letters to you this fall. Your Government has repeatedly refused to make public the report and recommendations of the Government-appointed Bioethics Table, which you received almost three months ago.

When your Government was clearly and directly asked to release those recommendations to the public in Question Period in the Legislature on November 5, 2020 and again on December 3, 2020 (the International Day for Persons with Disabilities), your Government’s seemingly scripted answers were demonstrably evasive. When asked there, your Government did not agree to make those recommendations public. Similarly, your Government refused to do so in response to inquiries earlier this fall from Radio Canada and the Toronto Star.

The Ontario Human Rights Commission has repeatedly called on you to make public the Bioethics Table’s report and recommendations, and to consult with affected stakeholders in the human rights community. We would count ourselves among them. Your own Bioethics Table has called on you to make public their recommendations. On December 3, 2020, an open letter to you from fully 64 organizations and groups called on you to make those recommendations public now.

The Government has never offered a word of explanation or justification for its protracted secrecy here. It has not explained how that secrecy could be squared with the Premier’s promise to be open and transparent about the Government’s response to the COVID-19 pandemic, and his promise to protect the most vulnerable.

At the Premier’s December 3, 2020 news conference, you stated that a protocol would be made public at “the appropriate time”. Minister, now is the appropriate time! More and more people are contracting COVID-19. Hospitals are getting closer and closer to the breaking point. US media reports that medical rationing is on the verge of becoming necessary in some places, if it is not already the case now. Moreover, even if the Government is still working on this issue, we need to now see the recommendations that the Bioethics Table submitted to you three months ago. We need to see to what extent, if any, the Bioethics Table implemented recommendations that disability advocates and experts presented to them. On this life-and-death issue, Ontarians, including vulnerable people with disabilities do not have the luxury of time!

We need to now have the opportunity to directly speak to and consult with those within your Government who are working on this issue. Last summer, we only got to speak to the Bioethics Table. That is a voluntary body, outside Government, that only made non-binding recommendations to the Government. It is not the body that decides what the final triage protocol would be.

We ask you to let us know who, within the Government, is working on this issue, and who has lead responsibility for it? In a number of other areas, the Government has established “command tables”. Have you established a triage command table, or some such working group? If so, what is their mandate? Who is on this committee or in this group? Which members of the Bioethics Table, if any, are on that internal Government committee or working group? What are their time lines for action?

Last winter, your Government was correct to conclude that it needs to get ahead of the game, and to have a critical care triage protocol in place, in case it is needed. Our shared hope that triage will not be needed does not diminish the need for to be ready, just in case.

Ontarians cannot afford to simply trust your Government’s speculative claim in the Legislature on November 5, 2020 that the situation in Ontario should not require resort to critical care triage. Since making that claim, daily rates of infections have continued to break records, day after day. Various communities have been locked down. Restrictions during lock-downs have been gradually made more strict. The Government’s modelling predicts much worse to come. Media reports show that hospitals are being stretched.

The Government has claimed that it has expanded the number of hospital “beds” in the face of the COVID-19 pandemic. Does each of these new beds qualify as a fully-equipped and fully staffed intensive care bed, with all the intensive care doctors, nurses, equipment, environmental controls and ventilator technicians needed to effectively support those “beds”?

Please answer our important inquiries in this letter. Please fulfil Premier Ford’s written election promises to 2.6 million Ontarians with disabilities in his May 15, 2018 letter to the AODA Alliance, that:

“Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.”

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC: Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

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

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

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

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

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

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

December 7, 2020 Letter from Ontario Human Rights Chief Commissioner Ena Chadha to Ontario Health Minister Christine Elliott

December 7, 2020

The Honourable Christine Elliott
Minister of Health
College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

[email protected]

Dear Minister Elliott:

RE: Follow-up on critical care triage protocol

I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.

I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or “triaging” critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.

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

Hon. Doug Downey, Attorney General

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

OHRC Commissioners

December 10, 2020 Email from Ontario Human Rights Commission to AODA Alliance and Other Human Rights Organizations

December 15, 2020

Dear Roundtable Participant:

The Ontario COVID-19 Bioethics Table invites your participation in a roundtable on December 17th 2020 to review and provide feedback on the Critical Care Triage during Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (hereafter the “Proposed Framework”). The roundtable will be attended by representatives from the Ministry of Health, Ontario Health and the Ontario Critical Care Command Table who will be present as observers.

The Proposed Framework with recommendations for next steps was submitted to the Ministry of Health and Ontario Health in September 2020. It is a green document within the overall Ontario COVID-19 pandemic response. An initial draft framework was developed and released to Ontario hospitals on March 28th. It was never implemented and was subsequently rescinded on October 29th by Ontario Health. The Proposed Framework has evolved iteratively through April to August 2020 based on a continuing review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, and feedback from health system stakeholders. All inputs were carefully considered by the Bioethics Table and incorporated into the Proposed Framework to the greatest extent possible. A summary of key challenges is included below.

The following questions will guide the roundtable discussion:

  • What are the strengths of the Proposed Framework?
  • What aspects of the Proposed Framework could benefit from further revision?
  • What changes would you propose?

Please note that a draft “protocolized” version of the Proposed Framework has been created by the Ontario Critical Care Command Centre and shared with hospitals for their feedback. This draft institutional protocol is substantially the same as the Proposed Framework document but also includes additional details about institutional procedures, data collection forms, and communication tools. Any changes to the Proposed Framework following from the roundtable discussion will also apply to the draft institutional protocol.

We look forward to your participation and feedback. By the end of the roundtable, we hope we will be able to reach general agreement on most aspects of the Proposed Framework. If you are unable to attend the roundtable, we welcome your written feedback. Please send to Dianne Godkin ([email protected]) no later than noon on December 17. We hope to complete the consultation by December 18.

Sincerely,

Jennifer Gibson, Co-Chair, Bioethics Table  Dianne Godkin, Co-Chair, Bioethics Table

 

 

Summary of Key Changes in Proposed Framework

Overall Context

  • Greater clarity on the context, scope and limits of critical care triage in the COVID-19 pandemic (i.e., only intended for use in a major surge in demand for critical care and only to be used if directed by the appropriate authority)
  • Significant reformulation of triage as not just a clinical problem of scarce resources, but also fundamentally a broader social problem encompassing human rights and just reparation in the context of health and social inequities

Ethical Principles

  • Explicit emphasis on human rights and recognition of pre-existing health and social inequities in the health system
  • More explicit identification of the ethical principles underpinning the approach to triage — original document was anchored to three principles (utility, proportionality, fairness); the current version specifies nine principles emphasizing equity and non-discrimination

Triage Process

  • Greater clarity on the nature, purpose, and rationale for explicit clinically-based triage criteria
  • Greater clarity and precision about what is and what is not permissible in the triage process
  • Specification of a single prioritization criterion – short-term mortality risk at <80%, <50% or <30% – and temporal parameters of ‘short-term mortality risk’ to mitigate risk of categorical exclusion of patients based on factors unrelated to their critical illness
  • Emphasis on individual assessment of each patient
  • Underlining of importance of ensuring clinical tools do not violate human rights

Legal Considerations

  • Inclusion of a stronger statement about the need for an emergency order to protect clinicians from civil and criminal liability
  • Recommendation that the Proposed Framework undergoes independent legal review

Due Process Elements

  • Clarification of duties to patients, including but not limited to accommodation, culturally safe and appropriate practices, presence of trusted advisor/community member
  • More detailed description of due process elements throughout the triage process
  • Clarification of scope and mechanism of appeal
  • Clarification of training/education content areas

Oversight

  • Clarification of need for a consistent and ‘standardized’ approach across province and institutional settings and conditions for triggering implementation of triage approach and transition between levels
  • Specification of roles and accountabilities
  • Clarification of the need and scope for systematic data collection to support monitoring and iterative review of triage approach

Recommendations

  • Specification of next steps to foster transparency and trust

December 11, 2020 Email from , AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chair Jennifer Gibson

To: Jennifer Gibson, Co-Chair Bioethics Table

From: David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

Date: December 11, 2020

Dear Jennifer,

I am writing to respond to your email just now, in which you suggest that the triage protocol that was sent to me is confidential. You wrote in material part:

“I do also wish to pick up on your question yesterday about whether the document is public. The triage framework document has a ‘confidential’ watermark because while the Bioethics Table has a green-light to circle back with human rights stakeholders, the document has not been authorized for public release. I feel hopeful that we will have greater clarity on this after the round table next week.“

With great respect, I am under no obligation to keep that document confidential and give no undertaking to keep it confidential. I was not yesterday asking if it is confidential. I stated that I am proceeding on the basis that it is not. Yesterday I wrote as follows in an email addressed to the Ontario Human Rights Commission, you and others:

“We will proceed on the basis that we are not undertaking any confidentiality in connection with this document and are free to make it public.”

No one asked me for a commitment of confidentiality before sending me the new Bioethics Table proposed critical care triage protocol. Had I been so requested, I would not have given a confidentiality commitment. The Government cannot retroactively and unilaterally impose a confidentiality obligation upon me after the fact.

Making this even more obvious, after I received the email (on which you were copied) yesterday from the Ontario Human Rights Commission forwarding the new triage document, I immediately replied to all that I saw no attachment. I asked that the document in issue be re-sent to me. It was in that email that I stated quite unequivocally that we would treat this document as public, as quoted above. It was in response to that very email that the attachments were thereafter forwarded to me.

Our position could take no one by surprise. As you will recall, last summer, we gave no earlier confidentiality commitment regarding the revised draft triage protocol on which we were invited to comment over the summer. To the contrary, we made it clear that we would not agree to keep it confidential. In the face of that position, we were provided last summer’s earlier revised draft triage protocol. We publicly posted that earlier document online last July.

Moreover, for months, we have repeatedly and publicly been critical of the undue, excessive and protracted Government secrecy surrounding the Government’s approach to the issue of critical care triage. We would not now agree to act to further that unjustified secrecy.

Beyond that, from the emails we received yesterday, it appears that the Government has already sent this document or something including it to Ontario hospitals. As such, the proverbial horse has left the stable.

You stated that the document has a ”watermark” (whatever that is) stating that it is confidential. I should note that the accessible MS Word version which I have opened does not include the word “confidential”. If it has such a “watermark”, it is not accessible. That MS Word version of this new draft protocol was sent to me specifically as an accommodation i.e. so that I would have an accessible version of it, rather than a pdf. It is commonly known that I am blind.

In any event, such a “watermark”, even if accessible, would not be apparent until after the document was opened. That does not retroactively create any obligations of confidentiality on my part.

Undoubtedly, this document has been sent to us at the Ontario Governments request, for the purpose of gathering input for the Government. The Government did not ask us in advance to agree to confidentiality in relation to this document. Indeed, no one at the Ministry of Health has had any direct contact with us at all about this entire triage issue, despite our writing the Minister of Health several times about the issue. As I understand it, the Bioethics Table, while appointed by the Government, is not itself part of the Government of Ontario.

We look forward to reviewing this new document and providing feedback on it. To help our review of it, can you explain what substantive changes were made as a result of our feedback to the Bioethics Table last summer?

Please confirm that you received this email. Stay safe.

December 15, 2020 Letter from AODA Alliance Chair David Lepofsky to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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

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

December 15, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

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

We have been waging a frustrating, uphill campaign for eight months to ensure that patients with disabilities suffer no disability discrimination in access to critical care if hospital overloads necessitate triage. Events since we last wrote demonstrate that our concerns are amply justified. Excitement over the COVID vaccine does not reduce our concerns. The pandemic is still raging out of control.

As a positive step forward, on Thursday, December 10, 2020, the Ontario Human Rights Commission sent us and several other human rights advocates the Government-appointed Bioethics Table’s September 11, 2020 recommendations for a critical care triage protocol. The Bioethics Table is a purely advisory body external to the Government. We have been campaigning for three months to get the Government to make those recommendations public.

1.        Bioethics Table’s Recommendations A Helpful Step Forward, But Problems Still Remain

We need time to study the external Bioethics Table’s September 11, 2020 recommendations. However, here are several important preliminary points. First, The Bioethics Table now commendably agrees with us that the “Clinical Frailty Scale” (CFS) should not be used to decide which patients should be refused critical care, if triage becomes necessary. It recognizes that to use the Clinical Frailty Scale in critical care triage would impose disability discrimination against patients with disabilities, and that research does not support the use of that Scale as a triage tool across the full spectrum of ages from 18 to end of life. We applaud the Bioethics Table for listening to this important message from disability advocates and experts last summer.

Second, it is good that for the first time, these recommendations give explicit and clear emphasis to human rights and the importance of adopting a non-discriminatory approach to critical care triage that is mandated in law. It is positive that, in response to our detailed submissions on point, the Bioethics Table has incorporated some principles to provide due process to patients at risk of being denied life saving critical care (though not all the due process safeguards that we contend are necessary).

As well, it is very commendable that for the first time, the Bioethics Table, in its September 11, 2020 recommendations, implements a number of elements from the AODA Alliance’s April 14, 2020 Discussion Paper on Critical Care Triage, such as:

“A patient’s quality of life must never be used as a factor in triage decisions, even though it may continue to inform an individual patient’s decision-making about their own care.

  • Triage decisions should not consider the costs that a patient’s future care will pose should they survive their episode of critical illness.
  • Patients who have their own, pre-existing ventilator used to treat a pre-existing chronic condition must be permitted to continue to use their personal ventilator. Their own, pre-existing ventilator must not be re-allocated to other patients.
  • Whether an individual’s underlying disease, disability, or illness is associated with a shortened life expectancy compared to average lifespans independent of their predicted short-term mortality risk should not be used as a factor in triage decisions (e.g., a person with a mental health diagnosis on average lives 7 to 10 years less compared to the general population).
  • A patient’s need for disability-related accommodations or assistance (e.g., a deaf patient who needs Sign Language interpreters to effectively communicate with hospital staff) should never be used as a factor in triage decisions.
  • Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).”

As Minister, important conclusions follow. The March 28, 2020 clinical triage protocol that your Government sent to all hospitals last spring and left in place for some seven months was in fact replete with disability discrimination, according to your own Bioethics Table. To have let this happen in the midst of a pandemic is extremely disturbing.

Had it not been for relentless human rights advocacy efforts, your Government would have left that discriminatory protocol in place, rather than belatedly rescinding it on October 29, 2020. We should not have had to go to such lengths, especially in the midst of a pandemic.

Finally, last spring, The AODA Alliance and the ARCH Disability Law Centre publicly alerted the Government in writing to fundamental flaws with the Bioethics Table’s approach to critical care triage, that pervaded the March 28, 2020, triage protocol. Yet when the Bioethics Table thereafter came up with a revised draft last summer (previous to its most recent September 11, 2020 recommendations), it did not address our major concerns. What got the Bioethics Table to eventually listen to us and take some corrective action is talking directly to us at a series of summertime virtual meetings. This shows that it is vital for those inside the Government who are now making actual decisions in this area to hear directly from us, and not to simply receive written submissions or to receive our feedback second hand..

2.        Important Concerns Remain in the Proposed Approach To Critical Care Triage

Despite our having eventually made some progress, there remain vital and urgent issues that need to be addressed, and that we are now studying. It is unclear to us what the Bioethics Table is precisely recommending on the vital issue of how critical care triage decisions should be made, or on whether it will ensure that disability discrimination does not creep in through the back door. It is not clear to us that it is correct to treat such decisions as entirely medical decisions. Additional due process protections are needed beyond those that the Bioethics Table commendably recommended.

3.        Will the Government Respect the Rule of Law in the Critical Care Triage Issue

As far as we have seen, the Government has not brought forward any legislation or regulations to provide a proper legal mandate for a critical care triage protocol that authorizes refusal of life-saving critical care. Our September 25, 2020, letter to you and the Ontario Human Rights Commission’s October 16, 2020 letter to you both raise this issue. It appears that the Bioethics Table’s September 11, 2020 report to you also raises a concern in this area. To date, the Government has not responded.

This is even more important given the need to legislate a right of appeal for patients facing the possibility of being denied critical care triage that they need. The Bioethics Table’s September 11, 2020, report identifies the need for an appeal process. We agree with part of it but believe it needs to go further. Either way, a legislated mandate will be needed.

We therefore ask:

#1. Will your Government bring forward legislation or regulations needed to provide a legal foundation for any critical care triage protocol that may be instituted, including rights of appeal, and will there be public hearings on such legislation since this has such great impact on the very right to life?

4.        What is the Government’s Internal Critical Care Command Table?

We just learned that within your Government, there is now in existence a Critical Care Command Table. This group must have a different role than the Bioethics Table with whom we had dealings last summer. The Bioethics Table is not part of nor situated within the Ontario Government. The Bioethics Table is purely advisory. It gives advice to the Government. The Government itself makes decisions on issues such as the rules and procedures to be followed if critical medical care needs to be rationed.

We have been trying to talk directly with your Government about this critical care triage issue since last April. The only contact we have had since then was with the Ontario Human Rights Commission and the external Bioethics Table. Those bodies have no plenary decision-making authority over this issue.

Can you please tell us the following:

#2. What are the names and titles of the members of the Government’s internal Critical Care Command Table? Who is the lead or Chair of that committee?

#3. When was the Government’s internal Critical Care Command Table established, and what is its mandate?

#4. What is the Government’s internal Critical Care Command Table’s plan of action to develop and finalize a new Ontario critical care triage protocol, and what is the deadline for it to finish this work?

#5. The Bioethics Table recommended on September 11, 2020, that The Government appoint a multidisciplinary consensus panel to further develop and refine the clinical factors and tools to be used for critical care triage. Has this been done? If so, when was it appointed? When and to whom will it report? Who is on that panel?

5.        Let Us Now Speak Directly to the Government’s Internal Critical Care Command Table

In the nine months since the pandemic began, no one at the Ministry of Health or Ontario Health has spoken to us about our critical care triage concerns, or other disability health care issues in the pandemic. It is essential that we speak directly to decision-makers within the Government. Layers of bureaucracy should not be artificially erected as a barrier.

The external Bioethics Table learned a great deal from direct meetings with us and our disability community colleagues.

However, the Bioethics Table’s September 11, 2020 recommendations do not include all the advice that we gave to that external Table. We want to be able to give the Government all our advice, not just the points the Bioethics Table decided to include.

We therefore ask:

#6. Please immediately arrange for us to virtually meet with and provide direct input to your Government’s internal Critical Care Command Table,.

6.        Make Public All Triage Documents the Government Shared with Ontario Hospitals

It is good that we have at last gotten some information about the draft new critical care triage protocol that the Government is considering. We need to see all the information about this draft that the Government shared with Ontario hospitals or other health care providers. We gather that the Government has sent some or all hospitals more documents or information about the new draft triage protocol than we in the human rights community have been given. We should have as much access to information about this as health care providers have.

We therefore ask:

#7. Please immediately share with us and make public all the documents on critical care triage, including any drafts that the Government has sent to any or all hospitals or other health care providers.

#8. When did the Government send any or all of the external Bioethics Table’s September recommendations to any or all hospitals or health care providers this fall?

7.        End Protracted Government’s Secrecy Surrounding Critical Care Triage

As our unanswered September 25, November 2, and November 9, 2020 letters to you show, it is important for the Government to end its protracted secrecy in this area. For example, your Government unjustifiably kept secret from us and the public for three months the Bioethics Table’s September 11, 2020 recommendations. Now that we have seen them, there is absolutely nothing in them that warranted any secrecy. They contain no nuclear codes or trade secrets.

Your Government’s concealment of the Bioethics Table’s September 11, 2020 recommendations for three months hurt the public. Given the worrisome rise in daily COVID-19 infections and our hospitals being filled with patients, you should have let us study those recommendations three months ago, so that by now you’d already have our advice on them. We must now scramble to analyze them under extreme and entirely avoidable time pressure.

After we received the external Bioethics Table’s September 11, 2020 recommendations, there was an inappropriate effort to retroactively gag us from making it public. As we explained in our December 11, 2020, email to Prof. Jennifer Gibson, Co-Chair of the external Bioethics Table, we are bound by no duty to keep it secret. We anticipate that the effort to try to retroactively restrict us from disclosing it to others very likely emanated from the Government and not the Bioethics Table.

8.        Conclusions

We need you to personally intervene now to put your Government’s approach on a proper track. Minister, you have a respected reputation for being committed to protecting society’s most vulnerable, including people with disabilities. This issue has been seriously mishandled by your Ministry’s officials, or by Ontario Health, or both.

We would welcome the opportunity to speak to you and to assist you in properly addressing this difficult issue.

Sincerely,

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

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

cc:

Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

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

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

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

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

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

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

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

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

December 15, 2020 Email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chairs

To:

Jennifer Gibson and Dianne Godkin

Co-Chairs, Ontario Bioethics Table

Via email: [email protected]; [email protected]

From:

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

December 15, 2020

Re: Critical Care Triage Protocol

Thank you for inviting the AODA Alliance to take part in a December 17, 2020, roundtable with the Government-appointed Bioethics Table on its newest September 11, 2020 draft critical care triage protocol. It proposes how decisions would be made on patients needing life-saving critical care if it becomes necessary to ration or “triage” critical care services because the skyrocketing COVID-19 pandemic overloads Ontario hospitals. Thank you also for incorporating a number of key points that disability advocates and experts urged upon you last summer in your most recent September 11, 2020 recommendations to the Ford Government.

We regret that we will not be fully prepared to give all our ultimate feedback at this roundtable, due to the short preparation time and the issues’ complexities. The triage proposal itself is 36 pages long. On the evening of December 14, 2020, you also sent a substantial series of additional materials. We will not have had time to review them all. If any are in pdf format, please provide them in accessible formats such as MS Word. We have not had time to check them for accessibility.

Given the number of people you have invited to take part, there will also not be time for all to give detailed input during that meeting. Nevertheless, we will do the best to help as much as we can in the allotted time.

To help in preparation for this meeting, may we bring the following matters to your attention:

  1. We understand from the Ontario Human Rights Commission’s December 10, 2020, email that Ontario hospitals were sent more documents or information about the Bioethics Table’s September 11, 2020 recommendations than was provided to those of us invited to take part in your upcoming December 17, 2020, roundtable. It is important for us to see all the material that hospitals have seen. Can you provide us with all that information? If you do not have authority to do so, can you support our request of the Minister of Health to do so, as set out in our letter to the Minister of today’s date, copied to you?
  1. We are rushing to read and fully understand the 36-page document that was provided to us last Friday. From it, it is not clear how a doctor is precisely being instructed to decide who will be refused critical care services if triage becomes necessary. As was the case last summer during our discussions of the now-discarded Clinical Frailty Scale, it would help us all to receive, in advance, a clear step-by-step explanation of how this would be done. It would also similarly help to be given example fact situations to illustrate how it would be applied. We expect that many, if not most, of those invited to take part in this roundtable will need this clarification in advance in order to prepare meaningful feedback for you at that roundtable.
  1. As our letter of today’s date to the Minister of Health explains, we have not previously been told about the existence or role of the Government’s internal Critical Care Command Table. Can you let us know what the membership and mandate of that committee is? We are eager to also know which, if any, members of the external Bioethics Table also sit on or assist in any way the Government’s internal Critical Care Command Table.
  1. As our letter of today’s date to the Health Minister also explains, while we are happy to speak with your group about this triage issue, your group is external to the Government. Your group merely gives advice. It makes no decisions. We want to speak directly to and meet with those inside the Government who are making decisions in this area.

We would appreciate it if you would support our request to the Government in this regard, set out in today’s letter to the Minister. We appreciate that your external Bioethics Table benefitted from and drew on a number of important recommendations that we presented during our virtual meetings with you over the summer. You are therefore in a pivotal position to explain to the Government how beneficial and important it is for them to hear directly from us.

We would be happy to provide any further information that might assist you in addressing these issues.

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]



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