Disability Rights Advocate Launches Court Application Against the Ford Government for Violating the Accessibility for Ontarians with Disabilities Act


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

May 7, 2021 Toronto: Today, blind lawyer, law professor and volunteer disability rights advocate David Lepofsky filed a court application against the Ford Government in the Ontario Divisional Court for violating a mandatory provision in the Accessibility for Ontarians with Disabilities Act (AODA). He asks the Court to order Ontarios Minister for Seniors and Accessibility to immediately post on line and otherwise make public the initial recommendations for measures needed to tear down barriers in Ontario’s education system plaguing students with disabilities and in Ontarios health care system, impeding patients with disabilities, that the Minister received from three advisory committees appointed under the AODA. Text of the notice of application and Lepofskys supporting affidavit are set out below.

The AODA requires the Ontario Government to lead Ontario to become accessible to over 2.6 million people with disabilities by 2025. It must enact and effectively enforcing a series of regulations, called accessibility standards, that spell out what organizations must do to become accessible to people with disabilities, and by when. The Government must appoint a series of committees, called Standards Development Committees, to advise on what those regulations should include.

According to section 10 of the AODA, when an advisory Standards Development Committee submits initial or draft recommendations to the Minister, the Minister is required to make those recommendations public upon receiving them, e.g. by posting them on the Governments website. Yet the ford Government sat on three sets of such initial or draft recommendations for months. The Health Care Standards Development Committee submitted its initial recommendations to the Ford Government by the end of December 2020. The K-12 Education Standards Development Committee submitted its initial recommendations to the Government on March 12, 2021. The Post-Secondary Education Standards Development Committee submitted its initial recommendations to the Government around the same time.

Just as this application was being served on the Government, the Government belatedly announced that it made public the initial recommendations of the Health Care Standards Development Committee. Lepofsky does not claim that this was triggered by the court application. However, the Government has still not made public the other two Standards Development Committees recommendations. Therefore this court application remains important and urgent.

The Ford Governments inexcusable contravention of the Accessibility for Ontarians with Disabilities Act hurts people with disabilities, by delaying overdue progress on accessibility. It is leadership by a poor example, from a Government that pledged to lead on this issue by a good example, said Lepofsky, chair of the non-partisan AODA Alliance which campaigns for accessibility for people with any kind of disability. The fact that for over five months in the middle of a pandemic, the Government sat on important recommendations on how to tear down disability barriers in Ontarios health care system impeding patients with disabilities is especially hurtful.

Lepofsky will argue that schools, colleges,, universities and health care providers deserved and were entitled to see all these initial recommendations immediately, so that they can try to put them into action where possible long before the Government enacts new regulations in this area.

People with disabilities should not have to resort to going to court to get the Ford Government to obey the law, said Lepofsky. Fortunately, Im blessed to have excellent pro bono representation by Martha McCarthy of McCarthy Hansen & Company LLP, and I have my own legal training, but no one should have to go through this.

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @davidlepofsky and @aodaalliance More background at www.aodaalliance.org

Text of the May 7, 2021 Notice of Application

APPLICATION
1. The applicant makes application for:
a. Judicial review of the respondents failure to act in accordance with s. 10(1) of the Accessibility for Ontarians with Disabilities Act (the AODA), more specifically:
i. The respondents failure to make available the initial or draft recommendations of the Health Care Standards Development Committee for public viewing on a government website or through such other means as the Minister considers advisable;
ii. The respondents failure to make available the initial or draft recommendations of the K-12 Education Standards Development Committee for public viewing on a government website or through such other means as the Minister considers advisable; and,
iii. The respondents failure to make available the initial or draft recommendations of the Post-Secondary Education Standards Development Committee for public viewing on a government website or through such other means as the Minister considers advisable.
b. An order for mandamus, directing the respondent to make the documents listed in paragraph 1. a., above, immediately available to the public by posting them on a government website and by such other means the Minister considers advisable;
c. If necessary, leave for this application to be heard urgently pursuant to s. 6(2) of the Judicial Review Procedures Act and Part I of the Consolidated Practice Direction for Divisional Court Hearings; d. The applicants costs in this proceeding on a full indemnity basis; and,
e. Such further and other relief as counsel may request and as to this court seems just. 2. The grounds for the application are:
a. In or about 2017, the Government of Ontario appointed the Health Care Standards Development Committee to prepare recommendations on what should be included in a Health Care Accessibility Standard to be enacted under the AODA. A Health Care Accessibility Standard would outline disability barriers that should be removed and prevented in Ontarios health care system that impede people with disabilities.
b. In or about 2018, the Government of Ontario appointed the K-12 Education Standards Development Committee to prepare recommendations on what should be included in a Kindergarten to Grade 12 Education Accessibility Standard under the AODA. A Kindergarten to Grade 12 Accessibility Standard could require the removal and prevention of disability barriers in Ontario schools that impede students with disabilities.
c. In or about 2018, the Government of Ontario appointed the Post-Secondary Education Standards Development Committee to prepare recommendations on what should be included in a Post-Secondary Education Accessibility Standard under the AODA. A Post-Secondary Education Accessibility Standard could require the removal and prevention of disability barriers in post-secondary educational organizations such as colleges and universities in Ontario that impede students with disabilities.
d. In or about December 2020, the Health Care Standards Development Committee delivered its initial or draft recommendations to the respondent, pursuant to s. 9 of the AODA.
e. In or about March 2021, the K-12 Education Standards Development Committee delivered its initial or draft recommendations to the respondent, pursuant to s. 9 of the AODA.
f. In March 2021, the Post-Secondary Education Standards Development Committee delivered its initial or draft recommendations to the respondent, pursuant to s. 9 of the AODA.
g. Pursuant to s. 10 of the AODA, the respondent has a mandatory duty to post those initial or draft recommendations upon receiving them. Section 10(1) of the AODA provides:
10. (1) Upon receiving a proposed accessibility standard from a standards development committee under subsection 9 (5) or clause 9 (9) (c), the Minister shall make it available to the public by posting it on a government internet site and by such other means as the Minister considers advisable.
h. The respondent has not posted any of the initial or draft recommendations from any of the Committees on the Government of Ontario website or otherwise made them public.
i. The respondents failure to fulfil his mandatory statutory duty post those initial or draft recommendations of the Committees on the internet and otherwise make them public is contrary to and flies in the face of the spirit and purpose of the AODA, which is to make Ontario accessible to people with disabilities by 2025. This failure delays Ontario from reaching the goal of becoming accessible to people with disabilities in the important contexts of health care and education fields in which a lack of accessibility has dire consequences.
j. The AODA aims to effectively implement the right to equality in areas like health care and education for people with disabilities that is guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms and s. 1 of the Ontario Human Rights Code.
k. The applicant has a strong public interest in this applications issues, both as a blind person and having acted as a volunteer disability accessibility community organizer and advocate for decades. The applicant led the volunteer campaign from 1994 to 2005 to get the AODA enacted. The applicant is currently the chair of the AODA Alliance, a non-partisan coalition that leads the campaign to get the AODA implemented in a meaningful and timely manner.
l. The Government of Ontario appointed the applicant as a member of the K-12 Education Standards Development Committee, on which he has served since the Committee was established.
m. The applicant is a member and past chair of the Special Education Advisory Committee of the Toronto District School Board, established under O. Reg. 464/97.

3. The following documentary evidence will be used at the hearing of the application: a. The Affidavit of the Applicant, David Lepofsky; and,
b. Such further and other material as counsel may request and this Honourable Court will permit.

Text of the May 7, 2021 Affidavit of David Lepofsky

I, David Lepofsky, CM, O. Ont., LLB (Osgoode Hall), LLM (Harvard University), LLD (Hon. Queens University, University of Western Ontario, Law Society of Ontario), of the City of Toronto, in the Province of Ontario, AFFIRM:
1. I am the Chair of the Accessibility for Ontarians with Disabilities Act Alliance (the AODA Alliance) and am blind. As such, I have knowledge of the matters to herein deposed.
2. I affirm this affidavit in support of my application for judicial review, in which I am seeking mandamus directing the Minister of Seniors and Accessibility to fulfil his statutory duties under s. 10(1) the Accessibility for Ontarians with Disabilities Act (AODA), and for no other or improper purpose. The AODA Alliance
3. The AODA Alliance is an unincorporated, volunteer-run, non-partisan community coalition of individuals and organizations.
4. The AODA Alliance was established in the fall of 2005, shortly after the Ontario legislature enacted the AODA. Its mission is to contribute to the achievement of a barrier-free society for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the AODA. Its activities are documented in detail on its website at http://www.aodaalliance.org.
5. The AODA Alliance is the successor to the Ontarians with Disabilities Act Committee (the ODA Committee). From 1994 to mid-2005, the ODA Committee led a non-partisan province-wide campaign, advocating for the enactment of strong, effective disability accessibility legislation in Ontario, culminating in the enactment of the AODA in 2005.
6. The AODA Alliance builds on the ODA Committees work, and draws its membership from the ODA Committee’s broad grassroots base. The work of the ODA Committee from 1994 up to the time when it finished its work in mid-2005 is documented in detail at: http://www.odacommittee.net.
7. The AODA Alliance has received broad recognition as a credible non-partisan voice on disability accessibility issues. For example:
a. The Government of Ontario and members of the provincial legislature have repeatedly and publicly recognized and commended the efforts of the AODA Alliance, and before it, the ODA Committee, for its volunteer advocacy on the cause of accessibility for people with disabilities.
b. In every provincial election starting in 1995, at least two of the major Ontario political parties have made election commitments concerning accessibility for people with disabilities. In every case where such commitments were made, they were set out in letters from the party leader to the ODA Committee up to 2005, and after that, to the AODA Alliance. For example, Premier Dalton McGuinty made his 2011 election promises on disability accessibility in his August 19, 2011 letter to me, as chair of the AODA Alliance. In the 2014 election, Premier Kathleen Wynne made her partys disability accessibility election pledges in her May 14, 2014 letter to me, as chair of the AODA Alliance. In the 2018 election, Doug Ford made his partys commitments on disability accessibility in his May 15, 2018 letter to me as chair of the AODA Alliance. All these letters are posted on one or other of the websites referred to above.
c. Our input on accessibility issues has been provided to community groups and government officials in several Canadian provinces, by the Government of Canada, and in other countries, such as Israel and New Zealand. My Involvement with the AODA Alliance
8. I am intimately familiar with the work of the AODA Alliance, and of its predecessor, the ODA Committee because:
a. I served as Co-Chair, and later as Chair, of the ODA Committee from early 1995 up to its dissolution in August 2005.
b. I was present during the establishment of the AODA Alliance and was a driving force behind its establishment as the successor to the ODA Committee. Its initial Chair was Catherine Dunphy Tardik. I initially took no leadership role with the AODA Alliance although I remained available to assist as requested.
c. In early 2006, the AODA Alliance appointed me as its Human Rights Reform Representative. I served as lead spokesperson for the AODA Alliance during controversial public and legislative debates over Bill 107, a reform to the Ontario Human Rights Code. Over that period, I worked very closely with the AODA Alliance Chair.
d. In February 2009, I became the Chair of the AODA Alliance, a position I have held to the present time.
9. My extensive work for the AODA Alliance and the ODA Committee is documented on the two websites identified above. All my work for these coalitions has been conducted as a volunteer. I have never been an employee of the AODA Alliance or the ODA Committee and have never received any salary from either organization.
10. Over more than two decades, I have had very extensive dealings with the Government of Ontario at all levels, both in my capacity with the AODA Alliance, and prior to that, as co-chair and then chair of the ODA Committee. In these capacities, I have met with Ontario Premiers, Ministers, Deputy Ministers, Secretaries of Cabinet, Assistant Deputy Ministers, and a myriad of other public officials in the Government of Ontario and the Ontario Public Service. I have similarly had extensive dealings with opposition parties and their staffs throughout my time doing volunteer work in this area.
11. I have received several awards for my volunteer activities on disability accessibility issues, including my volunteer work for the ODA Committee and later for the AODA Alliance. Among these, I was invested as a member of the Order of Canada in 1995, as a member of the Order of Ontario in 2008 and in the Terry Fox Hall of Fame in 2003. I have received honorary doctorates from Queens University, the University of Western Ontario, and the Law Society of Ontario arising from this activity.
The Non-Partisan Campaign to get the Government of Ontario to Enact a Health Care Accessibility Standard and an Education Accessibility Standard
12. The AODA requires Ontario to become accessible to people with disabilities by 2025. Under the AODA, an Ontario cabinet minister is to be designated to be responsible to lead the Acts implementation and enforcement.
13. Since June 2018, that designated lead Minister has been the respondent, Ontarios Minister for Seniors and Accessibility, the Hon. Raymond Cho (the Minister).
14. Among other things, the Minister is responsible for leading the development, enactment, and enforcement of AODA accessibility standards, in accordance with the powers, duties, and procedures set out in the AODA.
15. From 2003 to 2005, I was extensively involved in the negotiations with the Government of Ontario concerning the development of the provisions of the AODA, in my capacity as Chair of the Ontarians with Disabilities Act Committee.
16. In my capacity as AODA Alliance Chair, I have been extensively involved for years in grassroots non-partisan disability advocacy to ensure that strong and effective accessibility standards are enacted and enforced under the AODA. This has included an ongoing push since 2009 to remove and prevent the barriers that people with disabilities face in Ontarios education and health care systems.
17. If enacted, the enforceable regulations we seek would respectively be called the Education Accessibility Standard and the Health Care Accessibility Standard. Our efforts to secure the enactment of a strong Education Accessibility Standard are documented at www.aodaalliance.org/education. Our efforts to secure the enactment of a strong Health Care Accessibility Standard are set out at www.aodaalliance.org/healthcare.
18. As a result of our years of advocacy, on February 13, 2015, the Ontario cabinet minister then responsible for the AODA, the Hon. Eric Hoskins, announced that the Government of Ontario would develop and enact a Health Care Accessibility Standard under the AODA. Over one year later, on December 5, 2016, Premier Kathleen Wynne announced during Question Period in the Ontario Legislature that the Government of Ontario would develop an Education Accessibility Standard under the AODA.
19. Under the AODA, the first step required for the government to develop an accessibility standard is for the Minister responsible for the AODA to appoint an advisory committee (a Standards Development Committee) to make recommendations on what the specific accessibility standard should include. That Standards Development Committee is required to include representatives from the disability community as well as representatives from the obligated sector, such as health or education.
20. In or about 2017, the government appointed the Health Care Standards Development Committee (or the Health Care Committee) to develop recommendations on what should be included in the promised Health Care Accessibility Standard.
21. In early 2018, the government appointed two Standards Development Committees to make recommendations on what should be included in the promised Education Accessibility Standard.
a. One committee was appointed to deal with barriers impeding students with disabilities from kindergarten to grade twelve. That committee is called the K-12 Education Standards Development Committee (or the K-12 Committee).
b. The other committee was appointed to deal with barriers facing students with disabilities in post-secondary education. It is called the Post-Secondary Education Standards Development Committee (or the Post-Secondary Committee).
22. I was appointed to serve on the K-12 Committee and have spent a great many volunteer hours working on that Committee since it was established. The Standards Development Procedure Established by the AODA
23. Under the AODA, a Standards Development Committee is first required to develop initial or draft recommendations for the government. These initial or draft recommendations on what the accessibility standard in issue should include are to be submitted to the Minister. Under s. 10(1) of the AODA, upon receiving initial or draft recommendations from a Standards Development Committee, the minister is required to make those initial or draft recommendations public for at least 45 days, including posting them on the internet. The public is to be invited to give feedback on those initial or draft recommendations.
24. That public feedback is to then be given to the Standards Development Committee. The public feedback can serve as an important aid for the Standards Development Committee to refine, improve, and finalize the Committees recommendations, drawing on input from people with disabilities, the obligated sector of the economy, and the public. After that public feedback is received, the Standards Development Committee meets to review the feedback and to finalize its recommendations for the government on what the accessibility standard in issue should include.
25. Once finalized, the Standards Development Committee then is required to submit its final recommendations to the Minister. Section 10(1) of the AODA requires the Minister to make those final recommendations public upon receiving them. Thereafter, the government can enact some, all, or none of what the Standards Development Committee recommended.
These Three Standards Development Committees Have Provided their Draft Recommendations to the Government
26. By December 31, 2020, the Health Care Standards Development Committee submitted its initial or draft recommendations to the Minister. Those initial or draft recommendations have not been made public, despite the statutory requirement for the Minister to do so.
27. On or about March 12, 2021, the K-12 Committee submitted its initial or draft recommendations to the Minister. Just like the draft recommendations submitted by the Health Care Standards Development Committee, the K-12 Committees recommendations have still not been released to the public.
28. I understand that the Post-Secondary Committee submitted its initial or draft recommendations to the Minister around the same time as did the K-12 Committee. The Post-Secondary Committees recommendations have also not been released to the public.
29. I asked the Ministry of Senior Accessibility to provide the initial or draft recommendations of the Post-Secondary Committee to me, in my capacity as a member of the K-12 Committee. To date, the Ministry has not provided the Post-Secondary Committees recommendations to me.
30. I requested a copy of the Post-Secondary Committees recommendations because there is an obvious and substantial connection between its work and the work of the K-12 Education Committee. Both committees are making recommendations concerning barriers in education for students with disabilities.
31. As members of the K-12 Committee, we know about some of what the Post-Secondary Committee is recommending, because a joint subcommittee exists with representatives of the two Standards Development Committees to address technical overlap issues. There is thus no reason why we should not now have seen all of what the Post-Secondary Committee has recommended, and vice versa.
32. I have been urging the Government to quickly make public all these Standards Development Committee recommendations, on Twitter and otherwise. On April 29, 2021, I along with the rest of the K-12 Committee received the following email from the Ministry of Seniors and Accessibility: Dear K-12 Standards Development Committee members:

We hope this message finds you doing well.

We would like to provide an update on the progress of the committees initial recommendations report.
As you know, your committee Chair, Lynn Ziraldo, submitted the report and the accompanying report of the Technical Sub-Committee on Transitions to MSAA Minister Raymond Cho on March 12.
We have been busy preparing the reports for online posting, as well as translating them into French and preparing the survey that will accompany the postings. All of this work goes towards ensuring that the reports receive the most comprehensive feedback possible from the public.
As well, we understand the importance of posting this document as soon as possible, so that respondents will have a chance to consider providing input before the end of the school year. As I am sure you understand, our government is facing unprecedented challenges in delivering services to the public, and must prioritize all public-facing initiatives.
We look forward to notifying you when these postings are going to occur and appreciate your patience and understanding as we move closer to the posting date.
As always, you can reach out to the Chair, Lynn Ziraldo or the Ministry anytime with questions.

Thank you.
Accessibility for Ontarians with Disabilities Division
Ministry for Seniors and Accessibility
A copy of the email dated April 29, 2021 is attached as Exhibit A.
33. Since receiving this email, the initial or draft recommendations of these three Standards Development Committees have not been publicly posted.
No Justification for Delaying Public Posting of the Initial or Draft Recommendations of the Three Standards Development Committees
34. The Government has not provided a compelling reason why it could not have earlier posted these initial or draft recommendations.
35. The government was throughout well-aware of the work and the progress of each Standards Development Committee. The Ministry had staff organize and take part in committee meetings. Ministry staff had regular communications with each committee Chair and its members.
36. As of the date of this affidavit, the Ministry has had the final text of each set of initial or draft recommendations for ample time over five months in the case of the ones regarding health care, and almost two months in the case of those regarding education. The Ministry knew these were coming, well in advance, and what they would contain.
37. It would take little or no time to make these documents available in an accessible format. That cannot justify this delay.
38. Referring to the April 29, 2021 email quoted above, the circumstances of the COVID-19 pandemic do not justify this delay. The staff of the Ministry for Seniors and Accessibility are not responsible for leading the governments pandemic response.
39. Moreover, that email states that the during the pandemic, the Government must prioritize all public-facing initiatives. From my 33 years working in the Ontario Government before my retirement at the end of 2015, and from my extensive interaction with the Government as a disability rights community organizer and advocate, I understand this to mean that the Government wants to set priorities in the timing of messages it transmits to the public. Yet the Government can and does regularly transmit many different messages to the public at any one time. It can post multiple messages or documents on the internet on the same day. Its preferences or priorities over political messaging are not identified in s. 10 of the AODA with regard to the duty to make public a Standards Development Committees initial or draft recommendations upon the minister receiving them.
Harmful Consequences of the Delay in Making these Initial or Draft Recommendations Public
40. Ontario only has 1,335 days left before January 1, 2025, the date by which the AODA requires Ontario to become accessible to people with disabilities. This includes, among other things, a requirement that Ontario’s education system and health care system must have become accessible to people with disabilities by that date.
41. I, and many other people with disabilities, are concerned about the delay that is facing accessibility initiatives in Ontario. Ontarians with disabilities are concerned about the delay that is facing accessibility initiatives in Ontario. According to the Final Report of the Third Independent Review of the AODAs Implementation and Enforcement, by former Lieutenant Governor David Onley, prepared pursuant to s. 41 of the AODA, Ontario was not on schedule for reaching that goal on time, as of that reports date (January 31, 2019). While I have linked to the Final Report, I have not attached it as an exhibit as I am conscious of the need to keep my materials brief.
42. The delay in releasing these initial or draft recommendations hurts students with disabilities and patients with disabilities. Until Ontario enacts and effectively enforces strong and effective accessibility standards in the areas of health care and education, patients with disabilities and students with disabilities respectively will continue to suffer from the many barriers that they must face in Ontario’s health care and education systems.
43. The unfortunate reality is that this is just one of many delays that has already plagued the development of the Health Care Accessibility Standard and Education Accessibility Standard, at the hands of the government.
44. The previous government contributed to delay by taking some two years to just appoint the Health Care Committee. It also took that government over one year to appoint the K-12 Committee and the Post-Secondary Committee. In contrast, it took the government one year to develop the entire AODA and to introduce it into the Legislature for first reading in October 2004.
45. The committees work was paused during the provincial 2018 election. However, upon the current government taking office, it left the committees frozen for months. The AODA Alliance had to campaign to get the government to permit the committees to continue their work. The committees eventually returned to work in the fall of 2019. This delay, at the hands of this government, further unnecessarily delayed the eventual enactment of a Health Care Accessibility Standard and an Education Accessibility Standard.
46. I am particularly concerned about the governments inaction because it delays progress on accessibility in health care and education that could begin immediately. For example, in a speech I gave last month, I encouraged senior officials of Ontarios school boards to immediately study the K-12 recommendations and implement as many of them as possible, once the draft is public. I have been told by some officials at the Toronto District School Board (Canadas largest school board) that they want to see the initial or draft recommendations so that they can start to use the recommendations. The governments inaction is delaying this.
47. Compounding my concern about delays is the impending summer break for school boards. Boards are seldom fully operational during the summer, and further delay risks the boards not providing feedback until the fall.
48. I am also a member and past Chair of the Special Education Advisory Committee (SEAC) of the Toronto District School Board. Ontario regulations require each school board to have a SEAC to give advice on how to meet the needs of students with special education needs. I am eager for our SEAC and for each of the SEACs at every Ontario school board to see the K-12 Committees initial or draft recommendations as soon as possible, so they can recommend actions that their school boards should take now, drawing on the Standards Development Committees thorough and detailed work product.
49. In the same way, it is my aim that the Health Care Standards Development Committee draft recommendations spawn action on disability barriers in Ontario hospitals.
50. I similarly aim for the release of the Post-Secondary Education Standards Development Committees initial or draft recommendations to lead colleges and universities to act now to tackle the many barriers that students with disabilities face in those institutions. The governments delay in releasing these initial or draft recommendations further delays those much-needed actions.
51. Publicly, the government has claimed to lead by example on accessibility for people with disabilities, and to take an all of government approach to disability accessibility. For example, these commitments were made at a media event staged on February 28, 2020. It is difficult to reconcile the governments promises with its unnecessary and inexplicable delay in the release of these initial or draft recommendations.
52. The irony of the government attempting to explain its delay using the ongoing COVID-19 pandemic should not be lost on anyone. The harm caused to people with disabilities by the governments delay in fulfilling its duty to make public the committees draft recommendations is exacerbated by the COVID-19 pandemic. Two key examples come to mind:
a. First, people with disabilities are disproportionately adversely affected by COVID-19, including having higher rates of severe infection and death. For five months of the pandemic, the government has sat on the Health Care Standards Development Committees initial or draft recommendations, that could make health care more accessible to people with disabilities.

b. Second, during the pandemic, students with disabilities have faced even more barriers in Ontario’s education system. I have been involved in advocating against these, on behalf of the AODA Alliance. The government is stalling efforts to help improve the plight of students with disabilities during the pandemic by keeping secret the draft or initial recommendations of the K-12 Committee and Post-Secondary Committee. While the government waits, these students fall further behind their peers.

RG




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New Captioned Video Tells the Whole Disability Discrimination Story in Ontario’s Critical Care Triage Plan and More Media Reports Reveal More Cause for Worry


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

May 6, 2021

SUMMARY

Here are six more important developments in our campaign to protect people with disabilities from disability discrimination in Ontario’s critical care triage protocol.

1. New Captioned Video — Learn About the Disability Issues in Ontario’s Critical Care Triage Protocol

Day after day, you are getting so much information from us and others about the critical care triage issue for people with disabilities. That includes all the new information we report in this AODA Alliance Update.

Are you eager for a video that will explain what this is all about, from beginning to end? Check out the new captioned video by AODA Alliance Chair David Lepofsky where the whole story is explained. The video brings you up to date as of now. It explains the disability objections to the Ontario critical care triage, the troubling way the Ontario Government his dealing with this issue, and the bogus defences that the Government’s defenders have been giving the media, in their attempt to justify what the Government is doing.

We invite you to watch the video and share it with others. If you are teaching a course where this might be helpful, feel free to use this video. It is available at https://youtu.be/Ju8cyH7TbQo

Let us know what you think. Email your feedback to us at [email protected]

2. Where is the Public Accountability for Critical Care Triage Now Being Conducted by Ambulance Crews?

We have been warning for months about the danger of trickle down triage. For example, an ambulance crew, called to a medical emergency at your home, could decide whether or not to give a patient life-saving care, before they even get to hospital. We expect ambulance crews to do all they can to save lives, and not to decide whether or not to even try to save a life.

The Ford Government has refused to answer questions about this, whether from the AODA Alliance in writing or from the opposition in Question Period in the Legislature. In a very upsetting article in the April 28, 2021 Toronto Sun, set out below, it is evident that this triage is already going on.

This is a life and death issue. The public should daily be told how many lives are lost due to any form of triage, including this roadside triage. The Ford Government should now make public any directions to ambulance and emergency crews on this kind of triage. Protections need to be put in place to avert the danger of disability discrimination. We know that there is clear disability discrimination in the directions already sent to Ontario doctors, should they have to triage critical care services. There is no reason to be confident that there is no such danger if triage is done by ambulance crews before even reaching a hospital.

3. Who Exactly Will Live and Who Will Die if There is Critical care Triage in Hospitals? Behind Closed Doors, Practice Drills Have Been Going on For Months with No Public Accountability

The April 27, 2021 report by Global News, set out below, confirms that hospitals have been training for months on how to conduct critical care triage, in case it becomes necessary. This is all happening behind closed doors. We have no idea who ends up living and who ends up dying, according to these practice drills or simulations. We have no idea how differently the same case is decided from one hospital to the next, or from one doctor to the next. We have no word that anyone with human rights expertise is part of this, to alert doctors when they are running afoul of the Charter of Rights and the Ontario Human Rights Code. We have no idea if the Ford Government is monitoring any of this, to find out where its disability discriminatory Ontario critical care triage protocol needs to be fixed.

4. Pulling Back the Curtain on A Troubling and Misleading Media Strategy Now In Place, Seemingly Led by Those Behind Ontario’s Disability-Discriminatory Critical Care Triage Protocol

Those who are behind the creation and implementation of Ontario’s disability-discriminatory critical care triage protocol appear now to be conducting some sort of media public relations strategy to get out their version of this controversial issue. This appears to be underway to manage public expectations about critical care triage and to respond to some bad press that The Government has gotten on this issue. In the January 23, 2021 online webinar for doctors on the critical care triage protocol, those evidently at the centre of this indicated that they were planning such a communications strategy, to be later rolled out close to the time that critical care triage may become necessary.

Among the key people quoted in these stories include Dr. James Downar, co-author of the disability-discriminatory Ontario critical care triage protocol, and Dr. David Neilipovitz, a lead at the Ford Government’s secretive Critical Care COVID-19 Command Centre. We have asked the Ford Government who are the members of that command centre, and what its mandate includes. As with all our other inquiries, the Ford Government has refused to answer.

Part of this communication strategy seems to be the repetition of bogus arguments to defend the critical care triage protocols disability discrimination. In the April 20, 2021 AODA Alliance Update, we listed some of those bogus arguments.

In the April 26, 2021 Metroland report set out below, yet another bogus defence is offered, as follows, quoting Dr. Downar:

Regarding disability concerns, he added that the protocol will also ensure patients are being compared across different conditions the same way.

“There’s cancer guidance that applies only to people with cancer, heart failure guidance that only applies to people with heart failure, the frailty scale is only applied to people with frailty,” he explained. It’s not applied to everybody who has a disability.”

As in other contexts which we document in the April 20, 2021 AODA Alliance Update, this absurd argument presupposes that disability discrimination only exists if you discriminate against all people with disabilities at the same time. By that bankrupt approach, Nazi Germany’s viciously anti-Semitic Nuremberg laws did not discriminate because of religion. That is because they only applied to Jews and equally applied to all Jews. It would similarly justify separate schools for black children, as was the case in the US for decades, under the widely denounced 1896 U.S. Supreme Court ruling in Plessy v. Ferguson.

The Supreme Court of Canada wisely rejected such an impoverished approach to equality decades ago, in Andrews v. Law Society of BC, where the Court stated:

The test as stated, however, is seriously deficient in that it excludes any consideration of the nature of the law. If it were to be applied literally, it could be used to justify the Nuremberg laws of Adolf Hitler. Similar treatment was contemplated for all Jews. The similarly situated test would have justified the formalistic separate but equal doctrine of Plessy v. Ferguson, 163 U.S. 637 (1896),

We encourage the Ford Government to get their human rights legal advice from the Ontario Human Rights Commission and human rights experts, and not from physicians.

Another bogus and misleading part of this communication strategy is to try to misleadingly water down what critical care triage is. If a patient is refused critical care triage, they are bound to die. Yet part of the communication strategy on which we pull back the curtain is to claim that no one will be refused care. The April 26, 2021 Metroland article, set out below, includes this:

What would triaging look like in Ontario?
“It’s really important to note that with emergency standards of care, no patient is not going to get care,” said Dr. Randy Wax, a critical care doctor who is also a lead at the Ontario Critical Care COVID-19 Command Centre.

Let’s decode this. If you are refused critical care you need, you won’t be kicked right out of the hospital. You will be offered some lesser form of care, like palliative care. However, that is not the care you need to have any hope o of surviving.

This would be like someone who gets a gunshot wound who is told that they can’t have surgery they need to survive, and then being told: But we are not refusing you care. Here’s an aspirin.

Later in this Update, a May 5, 2021 article from CBC news online includes some of the same dubious defences. It gives no attention to voices from the disability community. This appears to be another story that could well be part of the communication strategy being conducted on behalf of the Ford Government’s Critical Care COVID Command Centre, to manage public expectations.

5. Due to Protracted and Harmful Government Secrecy, Media Must Continue to Rely on Leaks to Report on Ontario’s Critical Care Triage situation

In a May 4, 2021 news report set out below, The Globe and Mail reported that Ontario’s ICU overload may be levelling off. This could avoid the need for The Government to green light rationing or triage of critical care, even though, as noted above, this appears to be going on already in our health care system in one form or another.

It is worrisome that the Globe and Mail report is based on a leaked internal memo. Those making these decisions are still cloistered behind closed doors.

That leak could have come from an aggrieved doctor working in the system. On the other hand, it could well have come from an official at the Ministry of Health, the Premier’s office or Ontario Health. They are taking heat for the critical care triage issue. Such a leak would help deflect some of that pressure. It could lead some reporters to think (wrongly, if so) that there is no longer a story here to cover, when it comes to disability discrimination in critical care triage. However, Ontario is certainly not out of the woods by any means.

6. Disability Accessibility, the Ford Government and the Big Picture

The Ford Government’s delays on disability accessibility just carry on. There have now been 826 days, or over 2 and a quarter years, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no effective plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis. The Ontario Government only has 1,336 days left until 2025, the deadline by which the Government must have led Ontario to become fully accessible to people with disabilities.

MORE DETAILS
Toronto Sun April 28, 2021

Originally posted at https://torontosun.com/news/local-news/to-live-or-die-waves-of-covid-reality-hit-torontos-paramedics

TO LIVE OR DIE: Waves of COVID reality hit Toronto’s paramedics
Struggling to keep up with Toronto’s third wave, city paramedics say they’re having to ‘triage’ cardiac arrest patients

Author of the article: Bryan Passifiume
Paramedics wheel a patient into the emergency department at Mount Sinai Hospital in Toronto, Wednesday, Jan. 13, 2021. PHOTO BY COLE BURSTON /The Canadian Press As soon as the call clears, another one’s loaded and ready.

And these days, it’ll most likely be another COVID patient.

That’s the reality for Toronto’s paramedics, who say nobody among their ranks thought COVID-19’s third wave would be this bad.

You just don’t believe the news, the news says hospitals are overwhelmed, but are they? said a veteran Toronto advanced-care paramedic, whom the Toronto Sun agreed not to identify.

From the horse’s mouth: we’re seeing it that’s something we’re all now realizing.

While Toronto’s professional lifesavers have indeed been busy this past year, he told the Sun things really started to get bad earlier this month.

In fact, he remembers the exact call.

Honestly, it was three weeks ago, he said, describing the short-of-breath 30-something male he and his partner were dispatched to assist.

This guy had a fever and couldn’t get up, and we’re like, Oh, damn,’ he recalled.

He had a room-air sat of 50%.

Patients with blood-oxygen levels that low are almost always unconscious. In fact, anything below 90% is cause for concern.

Called silent hypoxia, it’s one of this pandemic’s biggest medical mysteries: how patients with such dangerously low oxygen levels show little outward evidence of their dire condition.

They don’t even look tired, he said.

Then you check them and realize Dude, really?! You don’t feel this?! We need to go to the hospital.’

It’s this deceptive pathology that makes COVID such a challenge.

It causes moments where the patient looks OK, but they’re actually really, really bad, he said, adding those patients often crash quickly and catastrophically.

What sticks out the most are the ages and a lack of comorbidities of those going into the back of his ambulance.

Waves one and two were elderly people, he said.

Now we’re averaging late 40s.

What irks him and his co-workers most are those who dismiss COVID as a bad flu.

Influenza doesn’t make your O2 (oxygen) saturation drop below your age, he said.

We’re seeing patients with oxygen levels not seen without opioids in play, and neither Narcan nor oxygen are going to fix it.

Emergency rooms and ICUs are full, he said with many receiving care in the ER normally seen in intensive care.

That’s what overcapacity means, he said.

It means that there’s people in emerge receiving ICU treatment and that’s not the place for it.

A paramedic transports a patient to Mount Sinai Hospital in Toronto, April 17, 2020. City Council orders check-up on Toronto paramedics
Erik Sande is the president of Medavie Health Services.
SANDE: Paramedics answer the call — across Ontario’s health system A Region of Durham Paramedic Services ambulance.

Gravely-ill patients more likely to be pronounced dead at scene
As city hospitals steel themselves for worst-case triage protocols, paramedics say it’s a reality they’re already experiencing.

Overrun emergency rooms and intensive-care units put paramedics in the position as well as the base physic
ians overseeing them of having to pronounce gravely ill patients, particularly in cases of cardiac arrest, deceased on scene rather than going through the usually hopeless motions of seeking hospital treatment.

I haven’t actively run a cardiac arrest in the past five I’ve done, said the Toronto advanced-care paramedic.

We just said to the family, Do you want anything done?’

Cardiac arrest, particularly in older patients, is a dire medical emergency with less than 10% survival rates, according to the Heart and Stroke Foundation.

The COVID emergency, the paramedic said, means they’re more likely to pronounce such patients dead over pursuing lifesaving efforts that only serve to prolong the inevitable.

Except in cases of obvious and catastrophic trauma, paramedics seek guidance on pronouncing death from physicians over the phone.

I got a pronouncement in 20 seconds the other day, the paramedic said.

The alternative, he said, is often worse.

If you get them back, where are they going to go, into the ICU to live for a day on a vent and die? he said.

The family’s able to see them now, be with them there’s no closure bringing (the patient) to the hospital where, oh by the way, they can’t come.

This leads to paramedics forced into end-of-life discussions with grieving family members.

You know who does those? Doctors. Doctors have those conversations, he said.

Now, it’s us.

Experts, including outspoken critical care physician Dr. Michael Warner, are warning Toronto’s hospitals are just days away from ICU triage, where decisions are made on who is and isn’t entitled to lifesaving care.

The way Dr. Warner’s talking about how we don’t want to have to triage ICU patients, we are now triaging cardiac arrest patients, the paramedic said. If bringing this person back or giving them hope means only living for one more day on a ventilator man, no. Let them go.

Families forced to make this decision, he said, are almost always grateful.

They say Thank you for not working on them, thank you for letting them pass as peacefully as possible, he said.

Then you walk out, do your paperwork, grab a coffee, then go on to the next one.

[email protected]
On Twitter: @bryanpassifiume

Global News April 27, 2021

Originally posted at https://fm96.com/news/7812658/covid-ontario-icu-emergency-triage/

Pushing Ontario’s ICUs to the brink: How some hospitals are preparing for the worst FM96 London

Rachael D’Amore GlobalNews.ca

More than a year into the COVID-19 pandemic, Ontario doctors and nurses may have more experience treating the disease but are increasingly staring life-or-death decisions in the face.

The spike in cases has strained intensive care capacity across the province. There are about 875 COVID-19 patients in Ontario hospital ICUs as of Tuesday an all-time high and 589 people in intensive care units (ICUs) on a ventilator. With staffing shortages particularly the lack of ICU-trained nurses and beds rapidly filling up, discussions about the possible need to triage life-saving care are mounting.

A critical care triage protocol, something that was not done during earlier waves of the virus, could be enacted, meaning health-care providers may have to decide who gets potentially life-saving care and who doesn’t.

If you’ve ever participated in a fire drill, you understand what we’re talking about here, said Dr. James Downar, a palliative and critical care physician in Ottawa who co-wrote Ontario’s ICU protocol.

The purpose of training is to be prepared because if a crisis arrives and you run out of your resources and you don’t have a plan and you’re not prepared to institute your plan, things will get very, very bad.

Ontario hospitals received a document in January laying out guidelines on how to deal with critical care triage. In other words, what to do if there aren’t enough ICU beds.

Under those guidelines, patients are essentially ranked on their likelihood to survive one year after the onset of a critical illness. The process came under criticism from human rights advocates, saying it is discriminatory, particularly toward people with disabilities and seniors.

At this point, the province has not finalized the protocol nor has it officially been published, but a widely circulating draft titled Adult Critical Care Clinical Emergency Standard of Care for Major Surge said patients could be scored by doctors on a short-term mortality risk assessment.

The aim would be to prioritize those patients who are most likely to survive their critical illness, the document reads.

Patients who have a high likelihood of dying within twelve months from the onset of their episode of critical illness (based on an evaluation of their clinical presentation at the point of triage) would have a lower priority for critical care resources, it said.

The lists three levels of critical care triage:

Level 1 triage deprioritizes critical care resources for patients with a predicted mortality greater than 80 per cent.
Level 2 triage deprioritizes critical care resources for patients with a predicted mortality greater than 50 per cent.
At Level 3 triage, patients with predicted mortality of 30 per cent or a 70 per cent chance of surviving beyond a year will not receive critical care.

At this level, clinicians may abandon the short-term mortality predictions in favour of randomization, which the document noted is to be used as a last resort and should be conducted by an administrator, not by bedside clinicians.

The leaked document was prepared by the province’s critical care COVID-19 command centre, which would ultimately declare when to use it.

Hundreds of COVID-19 ICU patient transfers planned as Ontario braces for horrific’ 2 weeks

The College of Physicians and Surgeons of Ontario told doctors on April 8 that the province was considering enacting the critical care triage protocol, and that it would support such a tool once it is initiated by the command tables of the province and even when doing so requires departing from our policy expectations.

Downar emphasized that the protocol has not been instituted, echoing Ontario Health Minister Christine Elliott who on April 7 said there are some emergency protocols out there but they have not finalized any of that yet.

None of us want to be in this position, none of us want to be doing this, said Downar.We are prepared for it if it comes to that, but we are focused on not letting it come to that.

While a standard provincial protocol has not been formally established, some Ontario hospitals have been preparing anyway.

The University Health Network (UHN), which includes Toronto General, Toronto Western and Princess Margaret hospitals, have started virtual training sessions for staff on what to do if the virus’ growth gets the better of all other efforts to expand and accommodate the ICU system.

Dr. Niall Ferguson, the head of critical care at UHN, said while preparations for worst-case scenarios are happening, it doesn’t necessarily mean they’ll be enacted.
We’re not expecting to be implementing them anytime in the near future I think the likelihood is probably low, he told Global News.
COVID is more like a controlled train crash as opposed to an actual train crash where you’ve got a thousand critically ill people all on the same day then triage is inevitable. When you’re getting a thousand critical care patients over the course of weeks, which we are here, then there is an opportunity to adapt the system and grow capacity and do things differently.

Ontario’s latest modelling predictions cast doubt on short-term improvements. Even as cases slow or plateau, hospitalizations and ICU numbers are so-called lagging indicators of the severity of the virus in a certain jurisdiction. The provincial data predicts a peak of at least 1,500 virus cases in ICUs by the first week of May that’s next week and it could be higher, pushing Ontario’s total 2,000-ICU-bed capacity over the edge.

Downar said some training around emergency care standards has been going on for months.

He said avoiding the worst-case scenario depends on a lot of things and is not as simple as staring at the number of COVID cases.

It’s tough. Everybody wants to know a number and everybody wants to know where that line is, but it’s just not something that is easily put into numbers at the moment.

What’s unfolded over the past few weeks exemplifies just how bad it’s gotten but also how the system has been forced to adapt, as Ferguson said. Hundreds of patients from already over-capacity hospitals in the Greater Toronto Area are being transferred to other hospitals hours away. The province has directed hospitals to ramp down all elective and non-emergency surgeries to help alleviate pressure on the health-care system.

Transfers are not completely benign. There is a risk when we transfer people from one place to another, Downar said. It’s important for everybody to recognize that there already consequences to what we’ve been doing.

Metroland DurhamRegion.com April 26, 2021

Originally posted at https://www.durhamregion.com/news-story/10381003-what-would-triaging-patients-look-like-in-ontario-s-hospitals-if-invoked-/

What would triaging patients look like in Ontario’s hospitals if invoked? Protocol created to ‘counteract implicit biases and subjectivity’ Veronica Appia
OurWindsor.Ca
Monday, April 26, 2021
This story is Part Two of a two-part explainer about the current surge of patients in Ontario’s intensive care units amid the third wave of COVID-19, and the possibility of the province invoking the Emergency Standard of Care protocol. Read Part One here.

Amid a rise in ICU admissions across the province, medical experts have been discussing the possibility of invoking the Emergency Standard of Care protocol, released by the Ontario Critical Care COVID-19 Command Centre earlier this year, which includes three triaging scenarios.

Dr. David Neilipovitz, the department head of critical care at the Ottawa Hospital and a lead at the Ontario Critical Care COVID-19 Command Centre, said it’s important to note that the Emergency Standard of Care protocol has different aspects to it and “not everything is triage.”

“Triage has a different connotation,” he said, adding that this would typically mean withdrawing care from patients without their family’s consent.

Neilipovitz said that while the Emergency Standard of Care protocol has similar aspects, there is no withdrawal of care.

What would triaging look like in Ontario?
“It’s really important to note that with emergency standards of care, no patient is not going to get care,” said Dr. Randy Wax, a critical care doctor who is also a lead at the Ontario Critical Care COVID-19 Command Centre.

Rather, he said, it would be a matter of determining other appropriate ways to support the patients that would not have access to critical care.

“The whole principle of triage is to try to maximize the number of lives saved with the resources that you have and so, in general, the concept is we want to be able to identify patients who are most likely to benefit from receiving IC services,” Wax noted.

Dr. James Downar, a palliative and critical care specialist who was responsible for creating the protocol, added that the decision as to who would have access, under the protocol, would solely be determined by mortality risk.

Is triaging patients a likely reality for Ontario’s hospitals?

“Everybody who would be considered for critical care would have two separate assessments performed by qualified physicians to assess what would be felt to be their short-term mortality risk and they would use their clinical judgment, aided by the guidance provided,” he said, adding that in cases where there is insufficient data or disagreement between physicians, the hospital would take the most optimistic approach.

What are the human rights implications?
The concept of triaging has been cause for concern for human rights advocates and disability groups.

In an April 22 statement to Metroland, Ena Chadha, chief commissioner of the Ontario Human Rights Commission (OHRC), said the Emergency Standard of Care protocol “includes potentially discriminatory triage criteria, should doctors be forced to decide who gets access to critical care and who does not.”

She stated that since December 2020, human rights groups and vulnerable populations have not been consulted on the protocol.

On April 9, the OHRC issued a public statement asking the government to provide the status of the Emergency Standard of Care protocol, confirm that the Health Care Consent Act prevails to protect the rights of patients and families, consult human rights stakeholders and require hospitals to collect data about the populations most affected by COVID-19.

In response to these concerns, Downar said that the reason the protocol was created in the first place was to ensure there wouldn’t be any human rights concerns in these scenarios.

“When human beings are overwhelmed and confronted by difficult decisions in emotional situations, that’s where implicit biases and subjectivity become major factors and undermine decision-making,” he said.

“You counteract that with explicit guidance and consistent rules.”

Regarding disability concerns, he added that the protocol will also ensure patients are being compared across different conditions the same way.

“There’s cancer guidance that applies only to people with cancer, heart failure guidance that only applies to people with heart failure, the frailty scale is only applied to people with frailty,” he explained. “It’s not applied to to everybody who has a disability.”

Veronica Appia is a reporter with Torstar Corporation Community Brands, covering COVID-19 news across Ontario.

The Globe and Mail May 4, 2021

Memo says Ontario hospitals may avoid triage protocol

By JEFF GRAY
Staff
Ontario’s hospitals, despite facing an unprecedented strain from COVID-19, will likely escape the pandemic’s third wave without resorting to a triage protocol that would have forced doctors to decide who lives and who dies, according to a memo obtained by The Globe and Mail.

Doctors and hospital officials warn that weeks of tough public-health restrictions are still needed to keep slowing the virus’s spread. Hospitals will also need to keep increasing their already ballooned intensive-care capacity, postponing non-emergency operations and helicoptering patients from jammed facilities in hot spots to other beds across the province.

As of Monday, Ontario had 881 COVID-19 patients in its ICUs, more than double the total from just a month ago.

But the rate of increase appeared to be slowing. (In all, there were just over 2,000 patients of all kinds in the province’s ICUs.)

In a message to hospital chief executives dated May 2, Andrew Baker, the incident commander of the province’s critical-care COVID-19 command centre, says recent provincial modelling is still “concerning,” even as it shows a lower estimated number of COVID-19 ICU admissions than it did two weeks ago.

The memo asks hospitals to put 284 more ICU beds, already identified as ready to go at short notice, into operation and to prepare to receive more transferred patients. And it says the command centre will monitor staffing levels, and the effects of recent moves to transfer more elderly patients into long-term care homes, to determine whether hospitals should try to create even more critical-care capacity.

But the memo adds that it now looks as though the worst can be avoided: “I also wanted to share with you and your teams that we are increasingly confident that we will not need to activate the Emergency Standard of Care or recommend the use of the triage protocol.”

Requests for comment from Dr. Baker, who is chair of the critical-care department at St. Michael’s Hospital in Toronto, were referred to Ontario Health, the government agency that oversees health care in the province.

Ontario Health executive vice-president Chris Simpson, also a Kingston cardiologist, said the worst-case scenario from the most recent modelling by the province’s external COVID-19 Science Table – which projected the potential for more than 1,400 COVID-19 patients in the province’s ICUs by month’s end – would mean triage could be necessary.

But the province appears to be tracking the modelling’s mid-range scenario, in which ICU admissions crest around 1,000 before descending gradually.

“I think that scenario, if that were to unfold, does keep us out of triage-tool territory,” Dr. Simpson said. “But only because of the extra capacity that we have been able to bring online.”

He cautioned that the stresses on the system were already having effects on the quality of care for patients. He also raised concerns there could be “tremendous pressure” to reopen the province too quickly if cases continue to plateau or fall.

Doing so, he warned, could plunge the province into a fourth wave.

Kevin Smith, president and CEO of University Health Network, which includes Toronto General, Toronto Western and Princess Margaret hospitals, said even as numbers appear to be levelling off, hospitals and their staff are stretched past their normal limits. To avoid the worst, he said Ontarians need to keep following strict public-health rules, get vaccinated as quickly as possible and not let their guard down over the May long weekend.

“I would certainly hate for anyone to think that this is a time to relax,” he said.

“Absolutely that is not the case.”

Anthony Dale, president and CEO of the Ontario Hospital Association, said the science table predictions are cause for hope, noting that daily new infection numbers have been moderating. (Ontario recorded 3,436 new cases on Monday, down from a peak of more than 4,800 in mid-April.)

But he said nothing about COVID-19 can be taken for granted. Even if these encouraging trends continue, he said, the health care system will still be in a state of massive disruption for months, noting that more than 250,000 operations have been postponed in the pandemic.

“There’s nothing natural or normal about any of this,” Mr. Dale said.

Ontario’s triage protocol has been clouded by secrecy. A draft was only made public after a leaked copy was obtained by a disability rights group. Under the plans, incoming patients would be assessed for their likelihood of survival after 12 months. Those with the best chances would be prioritized for ICU beds. CBC Online News May 5, 2021

Originally posted at: https://www.cbc.ca/news/canada/toronto/doctors-describe-critical-care-triage-training-as-surreal-emotional-1.6013411 Doctors express relief, cautious optimism at news Ontario will likely avoid triage protocol Province says no triage model has been activated in Ontario at this time

Talia Ricci CBC News

Dr. Shajan Ahmed says most of his colleagues had never done any kind of triage training before. He was part of a group of physicians at UHN who participated in mock scenarios during the second wave. (Submitted/Shajan Ahmed)

Dr. Shajan Ahmed says he always thought of triage training as something needed in other countries or in war zones, where doctors must decide who gets potentially life-saving care and who doesn’t.

So when the emergency room physician with Toronto’s University Health Network found himself watching a webinar about it to help prepare doctors for the third wave of COVID-19, he says he was in a bit of shock.

“To come to grips with this being right at our [doorsteps] here in Toronto, a place where we have all kinds of resources, it was really bizarre, it was surreal,” he told CBC Toronto.

“None of us had trained for it before and none of us really signed up for this, to be honest with you.”

Ahmed was among a group of around 60 physicians who received the training earlier this year. It included running through mock cases, reading material and referencing online resources. The virtual sessions were conducted over Zoom with experts in simulation, ethics and palliative care.

The province says no triage model has been activated in Ontario at this time, and although the overall number of ICU admissions climbed to 900 for the first time last Saturday, the rate of increase appears to have started to slow down. In a memo obtained by CBC News directed to hospital CEOs, Andrew Baker, the incident commander of the province’s critical-care COVID-19 command centre, says projections remained “very concerning.” But the memo also adds they are “increasingly confident” that they will not need to recommend the use of the triage protocol.

But the prospect still weighs on the minds of some doctors, and for Ahmed, the training made the situation feel “very real.”

Hospitals in Ontario may not have to use triage protocol, memo says
“You read about it and you think it may come, but until you are actually doing the training it doesn’t feel real until that point,” he said, adding the sessions were more challenging than he anticipated.

“We would debrief after the sessions to talk about how it felt, and what was going through our minds and collectively everyone had to take a deep breath and, I guess, also a bit of a sigh of relief because we aren’t actually in this situation.”

Despite describing the current situation in GTA hospitals as “bursting at the seams,” Ahmed wants people to know if the triage model is activated, patients will still be cared for. The decision is not whether someone lives or dies but whether the person would be offered ICU level care.

“It’s very complex and there’s a lot of logistics involved but I don’t want the public to think we’re making decisions as to booting people to the street without providing care,” he said.

“We absolutely will provide care.”

Compassionate conversations part of the training
Dr. Erin O’ Connor, the deputy medical director of the University Health Network’s emergency departments, was part of the team that led the training.

“There’s a lot of emotion around this and this isn’t something any physician or any health-care provider wants to do, but when we were getting ever closer to it we realized we needed to prepare ourselves,” she said.

She adds that conversations with patients and their families were a big part of it.

“It helped people find the right way to say this kindly and empathetically and to also recognize and process their own emotions around it.”

Dr. Erin O’Connor is the deputy medical director of emergency departments at Toronto’s University
Health Network. O’Connor describes the process as an application of tools to help determine how likely someone is to survive and their likelihood of survival after a year of any acute illness, not just COVID-19. She says the team looked at five cases that represented typical situations in the emergency department and had participants evaluate the patients’ chances of survival.

“It was a little bit of how you would apply the tools to different cases, so it wasn’t so abstract,” she explained. She says the whole point of developing the short term mortality risk tools was to remove any bias from the system.

Canadian Armed Forces sending teams to Ontario as COVID-19 cases strain critical care capacity

“It was very clearly laid out that decisions cannot be made based on race, gender, economic status, disability, or age. This is really looking at as much as possible the medical factors that contribute to whether someone has a high chance of survival at a year,” she said.

Resources have been expanded through bringing health-care workers from other parts of the country, redeploying and retraining health-care workers, cancelling surgeries, bringing in more ventilators and transferring patients from hot-spot areas, among other measures. The Ministry of Health says the province continues to create additional hospital beds in the province, including the creation of two mobile health units.

“The logistics have been massive. But all of these things are being done to prevent us from getting into a position where we have to triage resources,” O’Connor said.

She says she’s feeling cautiously optimistic given the recent trends.

“We’re not out of the woods yet because we know patients stay in the ICU for a long time but we are slightly backing away from the need to use this.”

But Ahmed still thinks about it, and is still concerned about the current state of ICUs. He’s encouraging people to have conversations with loved ones about their goals of care.

“A lot of us lose sleep over it.”

ABOUT THE AUTHOR

Talia Ricci
Talia Ricci is a CBC reporter based in Toronto. She has travelled around the globe with her camera documenting people and places as well as volunteering. Talia enjoys covering offbeat human interest stories and exposing social justice issues. When she’s not reporting, you can find her reading or strolling the city with a film camera.




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5 things to know if your long-term disability claim is denied over a pre-existing condition


Citing a pre-existing condition is often a way for an insurance company to try to avoid paying long-term disability benefits. Insurers rely on exclusions in policies that essentially say you cannot receive benefits if you suffer from a pre-existing condition.

This is usually defined as a condition for which you previously received treatment that is tied to the medical issue preventing you from working. But the definitions can vary by policy, so be sure to check yours. It should provide a precise description for a pre-existing condition.

These are the five key things to remember if your insurer tries to deny you benefits because of a pre-existing condition.

1. A pre-existing condition is defined by your insurance policy

A long-term disability policy should always define a pre-existing condition. If the definition is not in the policy or does not apply to your situation, the insurance company cannot rely on it to justify denying your benefits.

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If your insurance company denies benefits because of a pre-existing condition, ask to see where in the policy it says that they can deny you on that basis. Ask for the pre-existing condition language directly from the policy.

 

2. A new disability cannot be classified as a pre-existing condition

If your inability to work is because of a completely new condition or symptoms you have never experienced or been treated for, and if you have continuously had long-term disability coverage for 12 months, the insurer should not be able to deny you for a pre-existing condition. (Some policies will specify that the continuous period of coverage required is less than 12 months.)

 

3. Having the same condition again doesn’t mean your claim should be denied

Even if you’re off work for a condition you previously suffered from or were treated for, you may still be entitled to long-term disability benefits.

In general, insurance policies will not rule out coverage for any and every related condition. They only exclude coverage if you were treated for that related condition during a time known as the pre-existing period.

As long as you were not treated for the same condition that is currently disabling you during the pre-existing period, then the insurance company cannot deny you benefits on this basis.

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4. Can’t make sense of pre-existing condition clauses? Help is available 

If you are having trouble interpreting your policy, contact an experienced long-term disability lawyer as soon as possible. They can tell you if the insurer was wrong to deny you on the basis of a pre-existing condition. 

If your claim is denied, don’t panic. There are many instances in which insurance companies tried to deny claims because of a pre-existing condition and were later found to have done so incorrectly. A disability lawyer can often find a way around the denial.

 

5. Insurers may ask for medical documents to find out whether you have a pre-existing condition

If you do not give the insurer access to the medical documents they are requesting, they will likely use that as a basis for denying your claim.

If you’re not sure your insurance provider has the right to access these documents, contact me or any other disability lawyer at Samfiru Tumarkin LLP for a free consultation before you provide that information. We will tell you whether their document requests are reasonable or not.


Has your long-term disability claim been denied due to a pre-existing condition?

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

Albert Klein 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. The firm also provides free advice through Canada’s only Disability Law Show on TV and radio.






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Ontario’s COVID-19 triage protocol ‘discriminates because of disability,’ advocates say


When Tracy Odell experienced bleeding in her stomach last summer during the first wave of the COVID-19 pandemic, she went to hospital but vowed she would not return.

“I don’t feel safe in hospitals and a lot of people with disabilities similar to mine, where you need this much assistance, don’t feel safe in a hospital,” she said.

Odell was born with spinal muscular atrophy and requires assistance to complete many daily tasks.

Now, amid the third wave and with critical care units filling up, Odell said she fears if she ever needed the care, she would not be able to get it.

Read more:
Pushing Ontario’s ICUs to the brink — How some hospitals are preparing for the worst

“I, personally, wouldn’t go to a hospital. I would feel it would be a waste of time and I’d feel very unsafe to go thereIt’s a real indictment, I think, of our system, that people who have disabilities, have severe needs, don’t feel safe in a place where everyone’s supposed to be safe,” she said.

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Odell is most concerned about a “critical care triage protocol” that could be activated in Ontario.

It would essentially allow health-care providers to decide who gets potentially life-saving care and who doesn’t.

Under the guidelines, as set out in a draft protocol circulating among hospitals, patients would be ranked on their likelihood to survive one year after the onset of critical illness.

Read more:
Ontario reports 3,480 new COVID-19 cases, 24 deaths

“Patients who have a high likelihood of dying within twelve months from the onset of their episode of critical illness (based on an evaluation of their clinical presentation at the point of triage) would have a lower priority for critical care resources,” states the document.

Odell says it’s tough to predict who will survive an illness.

“They have to guess who’s going to last a year ... As a child with my disability, my projected life expectancy was like a kid … they didn’t think I’d live to be a teenager and here I am retired, so it’s a very hard thing to judge,” said Odell.

Disability advocates have been raising alarm bells over the triage protocol for months.

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David Lepofsky, of the Accessibility for Ontarians with Disabilities Act Alliance, sent multiple letters to Minister of Health Christine Elliott demanding transparency, arguing “the Ontario government’s pervasive secrecy over its critical care triage plans has made many people with disabilities terrified, angry and distrustful.”

Read more:
‘She deteriorated like she fell off a cliff’ — Vaccinated Ontario senior battles COVID-19 in hospital

“People with disabilities have disproportionately had to suffer for the past year from the most severe aspects of COVID … People with disabilities are disproportionately prone to end up in intensive care units and die from the disease,” said Lepofsky.

“Now we face the double cruelty that we are disproportionately prone to get told, ‘No, you can’t have that life-saving care.’”

Lepofsky said the document that is circulating, while not finalized, is problematic, unethical and discriminatory.

“The rules that have been given to intensive care units for deciding who gets critical care and who doesn’t, if they have to ration, may look fine because they’re full of medical jargon, but they actually explicitly discriminate because of disability,” he said.

“We agree there should be a protocol, but it can’t be one that discriminates because of disability. That’s illegal.”

John Mossa, who is living with muscular dystrophy, has been homebound for more than a year, afraid he would contract COVID-19 if he went outside and not survive it.

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Read more:
COVID-19 — Critical care nurses in high demand in Ontario as 3rd wave puts pressure on hospitals

“COVID is a very serious disease for me … if I do get COVID, I would probably become very ill and pass away because of my poor respiratory condition. I have about 30 per cent lung capacity due to my muscular dystrophy so COVID is very serious. It’s been a very scary time,” he said.

Never more frightening than right now, Mossa said, amid a surging third wave with a record number of patients in Ontario’s critical care units and the potential for triaging life-saving care.

“The people that would be affected the most are the least considered to get care … I’m afraid, I’m totally afraid to go to hospital right now,” he said.

A few weeks ago, Mossa said, he had a hip accident but he has avoided the hospital, even though he is suffering and should seek medical help.

Read more:
‘A lot of suffering’ — Front-line health-care workers describe the moments before death by COVID-19

“I should be considering going to hospital, but I’m not going to go to hospital because I know that I won’t get the care I need and if it gets any worse. I know that I wouldn’t be given an ICU bed,” he said.

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On Wednesday, when asked about the triage protocol, Elliott said it has not yet been activated.

That was echoed by Dr. James Downar, a palliative and critical care physician in Ottawa who co-wrote Ontario’s ICU protocol.

Read more:
The complications of getting COVID-19 vaccinations for non-residents in Ontario

“I don’t think that there’s any plan to initiate a triage process in the next couple of days. I think a lot is going to depend on which way our ICU numbers go. They have been climbing at a fairly alarming rate,” he said.

On concerns by advocates that the protocol discriminates against people with disabilities, Downar said, “The only criterion in the triage plan is mortality risk.”

“We absolutely don’t want to make any judgments about whose life is more valuable, certainly nothing based on ability, disability or need for accommodations … If you value all lives equally, that, I think, is the strongest argument for using an approach that would save as many lives as you can,” he said.


Click to play video: 'Ontario to allow hospitals to move patients to long-term care, retirement homes to create room for COVID-19 patients'







Ontario to allow hospitals to move patients to long-term care, retirement homes to create room for COVID-19 patients


Ontario to allow hospitals to move patients to long-term care, retirement homes to create room for COVID-19 patients





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Disability Advocates to Present Today at Virtual Meeting of Toronto’s Infrastructure Committee to Oppose Allowing Electric Scooters


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

April 28, 2021 Toronto: Today starting at 9:30 am, the City of Toronto’s Infrastructure and Environment Committee will consider if the City should allow electric scooters (e-scooters) in Toronto. The AODA Alliance and other disability advocates are scheduled to make deputations to the Committee. The Committee meeting will be live-streamed at: http://www.youtube.com/torontocitycouncillive

City staff and Toronto’s Accessibility Advisory Committee have made strong recommendations to City Council against allowing e-scooters in Toronto, and against conducting a pilot project. In the same direction, disability advocates will tell the Committee that Mayor Tory and City Council must not unleash dangerous electric scooters in Toronto (now banned, unless Council legalizes them).

A City Staff Report amply shows e-scooters endanger public safety in places allowing them. Riders and innocent pedestrians get seriously injured or killed. They especially endanger seniors and people with disabilities. Blind people can’t know silent e-scooters rocket at them at over 20 KPH, driven by unlicensed, untrained, uninsured, unhelmetted fun-seeking riders. Left strewn on sidewalks, e-scooters are tripping hazards for blind people and accessibility nightmares for wheelchair users.

Toronto has been getting less accessible to people with disabilities. Allowing e-scooters would make that worse.

It accomplishes nothing to just ban e-scooters from sidewalks. The City Staff Report documents the silent menace of e-scooters continue to be ridden on sidewalks in cities that just ban them from sidewalks. We’d need cops on every block. Toronto law enforcement told City Councilors last July 9 that they have no capacity to enforce such new e-scooter rules.

E-scooters would cost taxpayers lots e.g., for new law enforcement, OHIP for treating those injured by e-scooters, and law suits by the injured. Toronto has more pressing budget priorities.

City Council should not conduct an e-scooter pilot. A pilot to study what? How many innocent people will be injured? We already know they will, from cities that allowed them. Torontonians should not be subjected to such a human experiment, especially without the consent of those at risk of being injured.

The AODA Alliance exposed the stunning well-funded behind-the-scenes feeding frenzy of back-room pressure that corporate lobbyists for e-scooter rental companies have inundated City Hall with for months. “The corporate lobbyists want to make money on e-scooter rentals, laughing all the way to the bank as injured pedestrians sob all the way to hospital,” said AODA Alliance Chair David Lepofsky. “We call on Mayor Tory and City Council to stand up for people with disabilities,, and to stand up to the e-scooter corporate lobbyists.”

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @aodaalliance
For more background, check out the AODA Alliance’s March 30, 2021 brief to the City of Toronto on e-scooters, the AODA Alliance video on why e-scooters are so dangerous (which media can use in any reports), and the AODA Alliance e-scooters web page.




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Solicitor General Brushes Off Disability Advocate Concerns About Triage Protocol


Published 21.04.2021
Jack Hauen

Asked about concerns raised by disability advocates for months that the provincial triage guidelines discriminate against them, Ontario’s solicitor general got upset.

“There is no triage protocol being used,” Sylvia Jones said, cutting off the question from QP Briefing. “I am very frustrated that you continue to suggest that there is a triage protocol in place in the province of Ontario in our hospitals. Talk to the hospital CEOs, talk to the minister of health. It is not accurate.”

Jones and Health Minister Christine Elliott said the government has not approved a plan for deciding who lives and who dies should Ontario intensive care units run out of life-saving equipment.

But while it has not been officially triggered, the preparation for the nightmare scenario is real.

Hospitals received training on draft guidelines, which leaked in January, and are preparing to use them.

Doctors and nurses have told reporters that due to rising case counts in the third wave of COVID-19, triage decisions could be days away. Some say that while the protocol has not been implemented, decisions to ration or triage care are already happening, including the cancellation of scheduled surgeries.

And advocates for people with disabilities say they worry that if and when the time comes, they will be seen as less deserving of care than someone without disabilities, because of two key parts of the protocol.

One is the inclusion of the “clinical frailty scale,” which outlines how dependent people are on others to live their lives.

It “asks questions like, can you get dressed yourself, without assistance? Can you go grocery shopping without assistance? Can you use a telephone without assistance?” said Mariam Shanouda, a lawyer with Toronto’s ARCH Disability Law Centre. “And if you answer no, I can’t do any of these things without assistance, then you are less likely to access critical care. This is disability discrimination in a nutshell.”

The other major issue is that doctors are asked to estimate patients’ likelihood of surviving the next 12 months. That timeline is too long, advocates say, and could force medical staff to “guesstimate”

“Guessing is not science,” said David Lepofsky, chair of the AODA Alliance. “And it doesn’t become science because the person doing it, or who’s being mandated to do it, has a white coat on and a stethoscope.”

Another issue is that advocates don’t know whether the protocol from January is unchanged, or whether a new version is being prepared. Lepofsky said the government refuses to answer any of his calls.

“The solution is for the government to immediately make public their step-by-step plan for rolling this out, which they obviously have, so we can know what they’re planning to do,” he said.

The Ministry of Health should speak directly to disability advocacy groups like his, “so we can have input into this, rather than having to communicate with the human shields behind whom they’re hiding, such as the Bioethics Table,” he said.

And each hospital that’s done a triaging drill should make the results of that drill public, “so the public can know how much these simulations for triage might vary, depending on which hospital you happen to go to,” Lepofsky said.

Opposition leaders also called for transparency.

Green Leader Mike Schreiner said he shares the concerns of disability advocates, and argued the government should release the guidelines publicly.

He also noted that ODSP payments have not gone up recently, despite the fact that “Ontarians with disabilities have borne a disproportionate burden in this pandemic.”

Liberal health critic John Fraser said Ontario is “dangerously close to asking clinicians to decide who gets care and who doesn’t. The government needs to be open and transparent about the status of the triage protocol. I think the disability advocates have a legitimate concern. The government should have been listening from the start and needs to engage with them now.”

In question period on Wednesday, Joel Harden, the NDP critic for accessibility and persons with disabilities, quoted Dr. David Neilipovitz, the ICU director at the Ottawa Hospital, who told CBC: “‘It would be naive for us to think that triage or changes in the standard of care have not already come about. Let’s think about that,” he said.

“Yesterday, the minister rose in this house and said there is no clinical triage protocol, but we know that hospitals received one on January 13. We also know that a training was done for medical professionals on YouTube on the 23rd of January. Speaker, I want to ask the minister, who is very well versed in these issues: what instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs?”

Elliott repeated that there is no official triage protocol yet.

“There have been discussions,” she said. “I understand that there were a number of disability groups that were concerned with respect to a previous draft that was prepared earlier this year. That was then reviewed with the human rights commission. There have been a number of discussions about modifications to it. But nothing has been activated, nothing has been approved by this government.”

It was indeed reviewed with the Ontario Human Rights Commission in December, but the organization still disapproves. Chief Commissioner Ena Chadha sent a letter to Elliott in March outlining concerns with the draft protocol and called on the government to publicly release it.

Harden said “there are no plans” is “not an acceptable answer.”

Elliott disagreed.

“The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago,” she said, “and I don’t need to take any instructions from anybody”

NDP Leader Andrea Horwath interjected, “Ha!”

“including the leader of the Official Opposition, about this issue,” Elliott finished.

Original at https://www.qpbriefing.com/2021/04/21/solicitor-general-brushes-off-disability-advocate-concerns-about-triage-protocol/




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National CBC News Covers Disability Discrimination Problems with Ontario’s Critical Care Triage Protocol — Protocol’s Defenders Make Transparently Bogus Arguments to Defend It


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/

National CBC News Covers Disability Discrimination Problems with Ontario’s Critical Care Triage Protocol — Protocol’s Defenders Make Transparently Bogus Arguments to Defend It

April 20, 2021

            SUMMARY

Over the past week, media coverage of disability discrimination objections to the Ford Government’s critical care triage plans has ramped up. It is fuelled by the frightening rise in new COVID-19 cases and the overload crisis in Ontario intensive care units (ICUs). Here is the latest and some reflections on the bogus arguments that have been made by the defenders of the Governments triage plans. When such obviously bogus arguments are made, it is clear they have no stronger defence to offer for their actions.

This recent news makes it clear that denial of life-saving critical care could well be going on now, a terrifying thought since the Ford Government has not approved critical care triage to begin. In the April 18, 2021 edition of CBC TV’s “The National”, addressed further below, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated, in the context of ambulance attendants withholding critical care:

“…It would be naïve for us to think that triage or changes in standard of care have not already in effect come about.”

(Note: Full quotation later in this Update)

This recent media reporting also confirms a serious concern we raised most recently almost two months ago, and earlier, fully one year ago. In Ontario, if critical care triage takes place, life-saving critical care may not only be refused to a patient who needs it by doctors in ICUs, but as well, by ambulance crews, long before the patient reaches the hospital, when the ambulance arrives at your home or office in response to an emergency call.

This is even more terrifying. Read on for the details.

 1. The Latest Media Coverage

  1. As a major step forward, on Sunday evening, April 18, 2021, CBC TV’s national newscast “The National” included a lengthy 7-minute report on Ontario’s critical care triage protocol and our objections to it. Seven minutes on a national newscast is a big deal. This is the news story that exposed the danger of ambulance crews, and not just doctors, denying life-saving critical care to a patient if triage is directed for Ontario. You can watch it online at any time at http://www.cbc.ca/player/play/1887030339766

Related to this, CBC News online posted a major story on this issue on April 19, 2021. We set it out below. Below you will also find reflections on both of these reports where the bogus arguments in defence of Ontario’s critical care triage plans can be found.

  1. On Thursday April 15, 2021, CBC Radio Thunder Bay’s Superior Morning and CBC Radio’s Ontario Morning each included interviews with AODA Alliance Chair David Lepofsky. On Friday, April 16, 2021, he was interviewed on this topic on CBC Radio Windsor’s Windsor Morning, CBC Radio Toronto’s Metro Morning, and CBC Radio London’s London Morning. The Superior Morning interview is available on CBC’s website any time

We were invited on five of CBC’s eight morning radio programs in Ontario to address this issue. We’d be happy to oblige the other three programs! They just have to contact us at [email protected]

  1. On April 14, 2021, the National Post ran an article on the critical care triage issue, briefly referencing the AODA Alliance objections. We set it out below.
  1. On April 13, 2021, AODA Alliance Chair David Lepofsky was interviewed on Dahlia Kurtz’s new Canada-wide program on Sirius XM Radio. We were delighted to be part of that program’s first week on the air.
  1. On Tuesday, April 13, 2021, David Lepofsky was interviewed on this topic by journalist Karlene Nation on Sauga Radio in Mississauga.
  1. On Monday, April 12, 2021, David Lepofsky was also interviewed on this topic on AMI Radio, a service of Accessible Media. This interview is available on AMI’s website.

Amidst all this coverage, we are eager for other media outlets to step up. For example, the Toronto Star and Global News earlier covered this issue, but have not covered it in months. We are always ready to give them any help we can.

Our objections to Ontario’s critical care triage protocol are also getting extensive attention on social media. The AODA Alliance and others have been busy tweeting on Twitter on this topic. We are getting Many retweets and supportive messages, including from people with no prior connection to the AODA Alliance. Please retweet our tweets. Follow @aodaalliance

On Twitter, some members of Doug Ford’s own Bioethics Table have echoed our concerns with the critical care triage protocol. Here are the relevant parts of two examples:

  1. @LisaSchwartz224: Supporting this request from @DavidLepofsky as explained in https://healthydebate.ca/opinions/icu-triage/ @sanixto @lforman @PMCEthics @PandemicEthics

@DavidLepofsky: @BillBlair @RosieBarton @ONgov So @fordnation Doug Ford, while you’re at it, how about also pulling back your disability-discriminatory #CriticalCare #triage protocol & your Government’s refusal to meet with us to address major human disability concerns? #accessibility #OnHealth #onpoli

Alison K Thompson @PandemicEthics: The Ontario COVID-19 Science Table members and the Bioethics Table members have collectively given thousands of hour of labour pro bono to @FordNation on behalf of Ontarians. I wish I had realized earlier that we were just window dressing….

 2. CBC Confirms Danger that Critical Care Triage May Be Undertaken By Ambulance Crews Before a Patient Even Reaches Hospital

The national news story that ran on the April 18, 2021 edition of CBC’s The National established for the first time that we have seen in the media that critical care triage can include emergency medical technicians (EMTs) refusing life-saving care to a patient before they even get to the hospital. We earlier warned about this danger. For example, EMTs arriving at your home to respond to a medical emergency may not resuscitate some patients. This would be appalling.

In the April 18, 2021 edition of CBC TV’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital had this exchange on camera:

“CBC: Will you get into a situation where ambulance attendants are told ‘Don’t intubate anyone?’

Dr. David Neilipovitz: Yeah, that can happen. It would be naïve for us to think that triage or changes in standard of care have not already in effect come about.”

We wrote Health Minister Christine Elliott about this worrisome danger back on February 25, 2021. She and the Ford Government have never answered. Here is what we asked:

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

 3. Reflections on What is Being Said Now to defend the Ford Government’s Disability-Discriminatory Critical Care Triage Protocol and Plans

In the CBC national coverage, the defences offered for the disability discrimination in the Ontario critical care triage protocol are flat wrong.

Bogus Defence #1

The first bogus defence is for the Ontario Government’s defenders simply to deny reality. In the CBC News online story below, Dr. James Downar, author or co-author and lead defender of Ontario’s critical care triage protocol, denies there is any disability discrimination. He has earlier done this in other media. The April 19, 2021 CBC News online report states:

“Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

The criteria that reference dressing or bathing oneself or going shopping, Downar said, do so only for patients with certain underlying conditions — in this case, cancer or frailty syndrome — who fall critically ill with COVID-19. And that’s because those kinds of assessments have been shown in research studies to be strong predictors of whether people with those underlying conditions will survive in the ICU, he said.

Dr. James Downar, who co-wrote Ontario’s ICU triage protocol, acknowledges it may have disproportionate effects on some groups. But he says it’s better than having no protocol and leaving it up to chance or vulnerable to doctors’ unconscious biases. (Ottawa Hospital Research Institute/The Canadian Press)

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.”

Similarly, in the April 18, 2021 report on CBC’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated:

“In my opinion, and for what it’s worth, is that disabilities do not factor in as a major factor to limit care.”

Totally disproving that bogus defence, here are two illustrations of clear ways that a patient’s disability would explicitly be held against them when a doctor decides how likely the patient is to survive for one year, and hence be prioritized or deprioritized for critical care. First, the January 13, 2021 Critical Care Triage Protocol directs the use of the “Clinical Frailty Scale” as a tool for assessing some patients’ eligibility to be refused critical care, for patients over 65 with a progressive disease (like arthritis or multiple sclerosis). That Scale has doctors assess whether those patients, needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.

Second, for patients with cancer, the critical care triage protocol’s online calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

“•     Whether a patient is “Fully active and able to carry on all pre-disease performance without restriction”

  • Whether a patient is “Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, e.g., light housework, office work”
  • Whether a patient is “Ambulatory and capable of all selfcare but unable to carry out any work activities; up and about more than 50% of waking hours”
  • Whether a patient is “Capable of only limited selfcare; confined to bed or chair more than 50% of waking hours”
  • Whether a patient is “Completely disabled and cannot carry out any self-care; totally confined to bed or chair” – persons in this category receive the worst rating, for getting access to critical care.”

Both those doctors, denying disability discrimination, certainly should know what the Ontario critical care triage protocol says. After all, Dr. Downar wrote or co-wrote it. Dr. David Neilipovitz heads the Ottawa Hospital Critical Care Department.

The fact that doctors will assess a patient’s likely one year mortality is no answer to this concern. The critical care triage protocol makes disability a clear criterion for assessing that one year mortality risk for some patients.

Bogus Defence #2

In the quotation above, Dr. Downar argued that there is no disability discrimination because two people with the same disability might be assessed very differently. Here is that quotation again from the April 19, 2021 CBC News online report, set out in full below:

“”People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.”

That argument rests on the fatally flawed premise that disability discrimination only occurs if all people with the same disability are treated identically under the Ontario critical care triage protocol. That, however, is not how the Ontario Human Rights Code or the Charter of Rights’ equality disability rights provisions work.

Bogus Defence #3

It appears from the April 19, 2021 CBC News online report that Dr. Downar also tried to defend the Ontario critical care triage protocol by stating that it does not discriminate based on disability, because patients with certain named stable disabilities are not subject to assessment for critical care triage by considering if they can perform 11 activities of daily living without assistance. Repeating an argument he has made elsewhere in the media, (but not explicitly using his name here), the CBC report states:

“Protocols in both Ontario and Quebec have explicit language that doctors are not to rely on someone’s disability in assessing their mortality risk. A frailty syndrome assessment is excluded, for instance, for people with “long-term disabilities (e.g. cerebral palsy), learning disabilities or autism.””

What that bogus argument boils down to is this: The critical care triage protocol does not discriminate against all people with disabilities. It only discriminates against some people with disabilities. Therefore, it does not discriminate against anyone based on disability.

That, of course, is no defence to disability discrimination. It is disability discrimination to discriminate against some patients because of some disabilities, without discriminating as well because of some other disabilities.

Compare this bogus argument to the context of racial discrimination. If a company refused to hire black people, it would be no defence to a claim of racial discrimination that the companied did hire some people from other racialized communities and only held a person’s racialized situation against them if their skin is black.

Bogus Defence #4

The fourth bogus defence put forward in this media reporting is that the Ontario critical care triage protocol is better than having no protocol at all. The online April 19, 2021 CBC article states:

“Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases — or an even cruder determination: first come, first served.”

This bogus defence presupposes that the only way to do critical care triage is with the disability discrimination spelled out in the January 13, 2021 Critical Care Triage Protocol, and with no due process for patients. We do not agree. It is now clear that fully six members of The Government’s external advisory Bioethics Table also disagree with the general position presented in defence of the Ontario critical care triage protocol.

If those designing, approving and defending this protocol have so impoverished an approach to human rights, the Ford Government needs to find new people to design the triage protocol and plan who have a better approach.

4. Reminder Register to Attend Tonight’s Virtual Public Forum on Addressing the Disability Discrimination in Ontario’s Critical Care Triage Protocol and Plan

Please register to join us and other concerned disability organizations tonight at 7:30 p.m. for a virtual information session to learn more about Ontario’s triage protocol and why it matters.

LEARN MORE AND REGISTER NOW! (ASL and closed captioning will be available)

For background on the AODA Alliance’s efforts to battle the danger of disability discrimination in critical care triage, visit the AODA Alliance website’s health care page.

            MORE DETAILS

 CBC News Online April 19, 2021

Originally posted at https://www.cbc.ca/news/health/covid-ontario-icu-triage-1.5992188

As ICUs fill up, doctors confront grim choice of who gets life-saving care

Ontario’s protocol for critical-care triage worries disability rights advocates

Zach Dubinsky, Terence McKenna, Joseph Loiero, Albert Leung

A health-care worker cares for a COVID-19 patient in the ICU at Toronto’s Humber River Hospital. A number of Ontario medical professionals fear that they may be forced to start triaging ICU patients within weeks. (Nathan Denette/The Canadian Press)

Hospitals are shifting critically ill patients around, looking for any empty bed. Nurses and doctors are putting in exhaustion-defying amounts of overtime. Some provinces are opening new intensive care unit capacity.

But it may not be enough to stave off a point no one wants to reach in the pandemic — when only a handful of ICU beds remain but a greater number of patients need those spots.

That point is drawing perilously close in Ontario and possibly parts of Saskatchewan, even as some other provinces don’t have a single hospitalized COVID-19 patient.

It means some of the hardest decisions health-care providers ever face will have to be made: who gets potentially life-saving care and who doesn’t.

“There are people who could be saved by critical care who aren’t going to get it,” said Dr. James Downar, a palliative and critical-care physician in Ottawa who co-wrote Ontario’s ICU protocol for when that awful moment strikes.

He hopes the protocol won’t be needed.

Ontario’s latest COVID-19 modelling ‘catastrophic,’ doctor says

Families torn apart. Workers at a breaking point. Inside a hospital system hit hard by 3rd wave of COVID-19

“It’s a difficult, difficult job to make such a call … and I hope it doesn’t happen.”

Decisions about how to ration life-saving care are never easy, Downar said — and this one has been not only arduous but controversial. Bioethicists and human rights groups have raised concerns that Ontario’s protocol discriminates against people with disabilities.

Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases — or an even cruder determination: first come, first served.

Level 1 triage could come in weeks

Ontario’s protocol is a work in progress and hasn’t officially been published, but the latest 32-page draft to be widely circulated among doctors looks like this:

Two physicians will independently assess any patient needing an ICU bed for their “short-term mortality risk” or STMR — their likelihood of death within 12 months.

At the lowest level of triage, Level 1, anyone with short-term mortality risk greater than 80 per cent is de-prioritized for an ICU bed.

If the COVID-19 situation worsens and triage moves to Level 2, anyone with an STMR over 50 per cent is “not prioritized for critical care.”

If ICUs get even more strained and go to Level 3, only people with a less than 30 per cent risk of dying within the next year would be prioritized for a spot.

Level 1 triage might be reached within Ontario in the next two weeks if current trends continue.

Quebec has a similar ICU protocol in place, inspired by Ontario’s, that also contemplates bands of mortality risk at 80, 50 and 30 per cent.

Withdrawal of care would need government approval

An even more drastic scenario, contemplated but not yet a possibility, is that doctors could take people off life support to free up ICU space for someone deemed to have a higher chance of survival. For that to happen, the provincial government would have to enact new regulations.

That hasn’t happened yet, but one Ottawa woman says she already worries critical-care physicians are under increasing pressure from having to treat so many ICU patients.

Nadine Tabbara, left, poses with her father, Souheil Tabbara, 74, who entered the ICU at Ottawa Hospital on Feb. 1 with severe COVID-19. (Submitted by Tabbara family)

Nadine Tabbara said her 74-year-old father, Souheil, contracted COVID-19 and was admitted to the Ottawa Hospital intensive care ward Feb. 1 and put on a ventilator. He can’t speak or move his limbs.

Tabbara said doctors told her they want to withdraw life support because he is not getting better, but she worries the worsening COVID situation might be affecting his care.

“The ICU is full and the doctors are overwhelmed,” she said. “And I think they may be rushing to decisions like this.”

The hospital told the family its decision was medically motivated and it would have recommended the same approach even without COVID-19.

“Hospital capacity during the COVID-19 pandemic has not influenced access to critical care at all and does not influence decisions on moving to palliative care,” Ottawa Hospital said in a statement. “The decision to move patients from critical care to palliative care is one that no health-care worker takes lightly.”

With Ontario’s intensive care units approaching a breaking point, doctors are preparing to use triage protocols to determine which of the sickest patients there is capacity to save. 7:16

Protocol violates human rights, groups allege

One major problem with the province’s ICU decision-making protocol, a number of human rights groups and bioethics experts say, is that it risks only deepening inequities in health care.

Some of the more fiercely contested criteria for mortality risk, to be used in assessing critically ill COVID-19 patients with cancer or seniors suffering from a condition known as “frailty,” consider things like whether a patient is “capable of only limited self-care” or can dress, bathe, eat or walk without assistance, and whether they can handle their finances or go shopping.

Lawyer David Lepofsky calls Ontario’s ICU triage plan ‘raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer.’ (Simon Dingley/CBC)

“The only way to describe this is as raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer,” said lawyer and disability rights activist David Lepofsky, chair of the AODA Alliance, which has been campaigning to reform the Ontario ICU protocol since an early version emerged last spring.

“It explicitly makes having a disability count against you, and that is flagrantly contrary to the human rights code and the Canadian Charter of Rights and Freedoms.”

Pandemic made ‘exponentially scarier’

Lepofsky said doctors’ decisions on who lives and who dies won’t be subject to appeal, which denies patients and their families a fundamental right.

“If we had the death penalty, you’d have right to trial and due process,” he said.

Vivia Kay Kieswetter, a seminary student at Trinity College in Toronto and advocate for people with disabilities who has an autoimmune disorder, said reading Ontario’s ICU triage protocol has made the pandemic “exponentially scarier” for her.

“This is something that has been a source of additional stress and anxiety for those with disabilities over the course of this pandemic,” she said.

COVID-19 patients arriving ‘back to back’ at Vancouver General Hospital’s ICU, doctor says

VIDEO: ‘Very anxious’: ICU nurse describes what it’s like to treat COVID patients

Six of the bioethicists on the panel that helped draft the protocol published a dissent last week. They say the protocol doesn’t properly recognize that people with disabilities, Indigenous patients or people of colour could disproportionately be scored at a higher short-term mortality risk because of pre-existing inequities in society that weigh on their health “well before people are brought to the doors of an ICU.”

“Judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to … [consider] social disadvantage,” the dissenting bioethicists wrote.

‘Absolutely not … based on disability’

Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

The criteria that reference dressing or bathing oneself or going shopping, Downar said, do so only for patients with certain underlying conditions — in this case, cancer or frailty syndrome — who fall critically ill with COVID-19. And that’s because those kinds of assessments have been shown in research studies to be strong predictors of whether people with those underlying conditions will survive in the ICU, he said.

Dr. James Downar, who co-wrote Ontario’s ICU triage protocol, acknowledges it may have disproportionate effects on some groups. But he says it’s better than having no protocol and leaving it up to chance or vulnerable to doctors’ unconscious biases. (Ottawa Hospital Research Institute/The Canadian Press)

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.

Protocols in both Ontario and Quebec have explicit language that doctors are not to rely on someone’s disability in assessing their mortality risk. A frailty syndrome assessment is excluded, for instance, for people with “long-term disabilities (e.g. cerebral palsy), learning disabilities or autism.”

Still, Downar acknowledged that the effect of using short-term mortality risk to triage patients for ICU care “is going to necessarily affect some demographic groups more than others.”

“What we lack is a way to correct for it that would be fair, objective and that everybody would agree on. It’s not that we haven’t looked…. But so far we have yet to see one that would be fair.”

 The National Post April 14, 2021

Originally posted at https://nationalpost.com/news/canada/surging-like-absolute-crazy-ontario-hospitals-pray-they-dont-reach-last-resort-stage-in-third-wave

‘Surging like absolute crazy’: Ontario hospitals ‘pray’ they don’t reach last-resort stage in third wave

The triage protocol would mean choosing which patients should be offered potentially life-prolonging care

Author of the article: Sharon Kirkey

A tent city has been erected in the parking lot of Toronto’s Sunnybrook hospital to handle a surge in COVID-19 cases. PHOTO BY PETER J. THOMPSON/NATIONAL POST/FILE

The idea of people being removed from intensive care, unhooked from ventilators that might have saved them to make room for someone else more likely to survive is almost unfathomable, says the president and CEO of Canada’s largest university hospital.

“I believe we’ll fight that one as long as humanly possible, and I pray we never get to the point of having to consider that,” said Dr. Kevin Smith, head of Toronto’s University Health Network and co-chair of Ontario’s COVID-19 critical care table.

Staged withdrawals of life-support from people with low chances of survival are not part of a 32-page emergency triage protocol that would be enacted should Ontario ICU’s become saturated.

“Only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent” in order to give that care to someone with better prospects, the College of Physicians and Surgeons of Ontario said in a notice to physicians last week.

The triage protocol would, however, mean choosing which new patients should be offered potentially life-prolonging care — who to admit and who not to admit to the ICU, whether for COVID or a heart attack.

Hospitals are working flat out to avoid enacting the protocol — transferring hundreds of patients from hot spots to communities with extra space, cancelling non-urgent surgeries to free up 700 critical care beds, and redeploying nursing and other health-care staff.

“Is it optimal and what we’d love to be doing? No. It’s where we find ourselves at this point in this rapid growth of the pandemic,” Smith said.

Admissions to ICUs have not only been rising, people are arriving in emergency rooms needing intensive care — immediately. “The virus has attacked them, literally, so quickly, it over came them so fast” that some are arriving in emergency desperately ill, before even having been tested for COVID, said Vicki McKenna, a registered nurse and provincial president with the Ontario Nurses Association.

As of midnight Monday, 1,892 people were in intensive care in Ontario hospitals, roughly a third — 623 — with COVID.

Should the number of people — with or without COVID — needing critical care approach 3,000, “that’s when we’re going to be precariously close to having to consider other options, and much less attractive options,” Smith said.

Those options include treating ICU patients outside ICUs, staffing ratios “we wouldn’t be very pleased by or comfortable with,” more field hospitals, bringing in doctors who don’t normally practise in hospitals, air lifting patients to Sudbury or Thunder Bay, “and, of course, last resort, thinking about the triage tool,” Smith said.

MORE ON THIS TOPIC

A recent study found that the neighbourhoods in Toronto and Peel region that had the most essential workers and lowest incomes had the great number of COVID-19 cases.

What the numbers fail to tell us about how and where COVID-19 spreads

According to a Statistics Canada report last month, this country saw 13,798 more deaths than would be expected by mid-December of 2020, based on previous years and after accounting for the aging population.

How ‘excess deaths’ show COVID-19’s real impact

Nationally, more than 3,000 people with COVID were being treated in hospital each day over the past seven days, a 29 per cent increase over the previous week. ICU admissions are up 24 per cent.

The number of deaths has averaged around 30 a day for several weeks, a dramatic drop from the peaks of wave one and two, when Canada saw the highest rates of nursing home deaths globally. Deaths are down because jurisdictions prioritized seniors in long-term care and retirement home for vaccines.

But if rapidly spreading variants make more people severely ill, that mortality trend could change, federal health officials warned Tuesday.

British Columbia saw a record 121 people with COVID in critical care on Monday, and hospitalizations are starting to stretch the capacities of some hospitals in Metro Vancouver, the Vancouver Sun reported. Provincial health officer Dr. Bonnie Henry is pleading with British Columbians to not leave their neighbourhoods as the fearsome Brazilian P.1 variant spreads. Quebec is also reporting a rise in hospitalizations and ICU admissions.

Under an emergency protocol for a major surge developed for Ontario hospitals, those with the best chance of surviving 12 months would be given priority for an ICU bed.

In Ontario, “we’re moving patients like absolute crazy; we’re surging like absolute crazy,” one critical care specialist said. Ontario quietly issued emergency orders last week allowing hospitals to transfer patients to other hospitals, if needed, without their consent.

About 1,300 to 1,400 people have been shuttled around the province so far, mostly from the GTA to southern Ontario, and “it isn’t without the realization of how stressful that is for families,” Smith said.

Ontario reported 3,670 new COVID cases Tuesday, down from Sunday’s 4,456 record high. But infections are based on exposures a week or so ago. And hospital admissions and deaths lag infections by a week or two.

Today’s ICU admissions reflect when case numbers in Ontario were in the 2,000-range, said Ottawa critical care physician Dr. James Downar. “Very likely the stay-at-home order, coupled with the delayed March (school) break, will have the effect of blunting and flattening this a little bit. But that’s going to take a while.”

Among his concerns, “super-loading” nurses. Ontario already had the worst registered nurse-to-population ratio of all Canadian provinces before the pandemic. ICU nurses are highly specialized and after 14 months of the pandemic are burning out.

Normally in the ICU, it’s a one-to-one, nurse-patient ratio. Occasionally, they might have two patients. “But when they get added, and loaded up, that’s when the situation is unbearable for the nurse, and very high concern of course for the number of patients they’re trying to care for at any one time,” McKenna said.

Under an emergency protocol for a major surge developed for Ontario hospitals, those with the best chance of surviving 12 months would be given priority for an ICU bed. The protocol includes a “short-term mortality risk” calculator physicians could use to input information on the person’s condition — whether they have heart failure, cancer, chronic liver disease or severe COVID — that gives the person’s triage priority score.

While no one wants it, it’s a rational approach based on core principles and criteria, said Downar, one of the authors. “You apply the same rule to everybody.”

The group Accessibility for Ontarians with Disabilities Act Alliance has said the protocol is discriminatory, reduces life and death decisions “to a cold digitized computation” and, if consent legislation was changed, would allow doctors to “evict” someone from critical care.

Quebec hospitals haven’t yet been hit hard in the third wave, despite rising infections. However, Montreal ICUs are still dealing with people who survived COVID in the second wave, and need critical care for “respiratory compromise,” said Dr. Peter Goldberg, director of critical care at the McGill University Health Centre.

“About one-third of all our ICU beds are committed to either active or recovering COVID patients,” Goldberg said in an email.

“I can’t imagine that we’ll escape another ICU admission blip over the next couple of weeks,” he said. But he added, “thankfully,” there are no discussions about implementing Quebec’s triage protocol.



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National CBC News Covers Disability Discrimination Problems with Ontario’s Critical Care Triage Protocol — Protocol’s Defenders Make Transparently Bogus Arguments to Defend It


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

April 20, 2021

SUMMARY

Over the past week, media coverage of disability discrimination objections to the Ford Government’s critical care triage plans has ramped up. It is fuelled by the frightening rise in new COVID-19 cases and the overload crisis in Ontario intensive care units (ICUs). Here is the latest and some reflections on the bogus arguments that have been made by the defenders of the Governments triage plans. When such obviously bogus arguments are made, it is clear they have no stronger defence to offer for their actions.

This recent news makes it clear that denial of life-saving critical care could well be going on now, a terrifying thought since the Ford Government has not approved critical care triage to begin. In the April 18, 2021 edition of CBC TV’s The National, addressed further below, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated, in the context of ambulance attendants withholding critical care:

It would be naïve for us to think that triage or changes in standard of care have not already in effect come about. (Note: Full quotation later in this Update)

This recent media reporting also confirms a serious concern we raised most recently almost two months ago, and earlier, fully one year ago. In Ontario, if critical care triage takes place, life-saving critical care may not only be refused to a patient who needs it by doctors in ICUs, but as well, by ambulance crews, long before the patient reaches the hospital, when the ambulance arrives at your home or office in response to an emergency call.

This is even more terrifying. Read on for the details.

1. The Latest Media Coverage

1. As a major step forward, on Sunday evening, April 18, 2021, CBC TV’s national newscast The National included a lengthy 7-minute report on Ontario’s critical care triage protocol and our objections to it. Seven minutes on a national newscast is a big deal. This is the news story that exposed the danger of ambulance crews, and not just doctors, denying life-saving critical care to a patient if triage is directed for Ontario. You can watch it online at any time at http://www.cbc.ca/player/play/1887030339766

Related to this, CBC News online posted a major story on this issue on April 19, 2021. We set it out below. Below you will also find reflections on both of these reports where the bogus arguments in defence of Ontario’s critical care triage plans can be found.

2. On Thursday April 15, 2021, CBC Radio Thunder Bay’s Superior Morning and CBC Radio’s Ontario Morning each included interviews with AODA Alliance Chair David Lepofsky. On Friday, April 16, 2021, he was interviewed on this topic on CBC Radio Windsor’s Windsor Morning, CBC Radio Toronto’s Metro Morning, and CBC Radio London’s London Morning. The Superior Morning interview is available on CBC’s website any time

We were invited on five of CBC’s eight morning radio programs in Ontario to address this issue. We’d be happy to oblige the other three programs! They just have to contact us at [email protected]

3. On April 14, 2021, the National Post ran an article on the critical care triage issue, briefly referencing the AODA Alliance objections. We set it out below.

4. On April 13, 2021, AODA Alliance Chair David Lepofsky was interviewed on Dahlia Kurtz’s new Canada-wide program on Sirius XM Radio. We were delighted to be part of that program’s first week on the air.

5. On Tuesday, April 13, 2021, David Lepofsky was interviewed on this topic by journalist Karlene Nation on Sauga Radio in Mississauga.

6. On Monday, April 12, 2021, David Lepofsky was also interviewed on this topic on AMI Radio, a service of Accessible Media. This interview is available on AMI’s website.

Amidst all this coverage, we are eager for other media outlets to step up. For example, the Toronto Star and Global News earlier covered this issue, but have not covered it in months. We are always ready to give them any help we can.

Our objections to Ontario’s critical care triage protocol are also getting extensive attention on social media. The AODA Alliance and others have been busy tweeting on Twitter on this topic. We are getting Many retweets and supportive messages, including from people with no prior connection to the AODA Alliance. Please retweet our tweets. Follow @aodaalliance

On Twitter, some members of Doug Ford’s own Bioethics Table have echoed our concerns with the critical care triage protocol. Here are the relevant parts of two examples:

1. @LisaSchwartz224: Supporting this request from @DavidLepofsky as explained in https://healthydebate.ca/opinions/icu-triage/ @sanixto @lforman @PMCEthics @PandemicEthics
@DavidLepofsky: @BillBlair @RosieBarton @ONgov So @fordnation Doug Ford, while you’re at it, how about also pulling back your disability-discriminatory #CriticalCare #triage protocol & your Government’s refusal to meet with us to address major human disability concerns? #accessibility #OnHealth #onpoli

Alison K Thompson @PandemicEthics: The Ontario COVID-19 Science Table members and the Bioethics Table members have collectively given thousands of hour of labour pro bono to @FordNation on behalf of Ontarians. I wish I had realized earlier that we were just window dressing.

2. CBC Confirms Danger that Critical Care Triage May Be Undertaken By Ambulance Crews Before a Patient Even Reaches Hospital

The national news story that ran on the April 18, 2021 edition of CBC’s The National established for the first time that we have seen in the media that critical care triage can include emergency medical technicians (EMTs) refusing life-saving care to a patient before they even get to the hospital. We earlier warned about this danger. For example, EMTs arriving at your home to respond to a medical emergency may not resuscitate some patients. This would be appalling.

In the April 18, 2021 edition of CBC TV’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital had this exchange on camera:

CBC: Will you get into a situation where ambulance attendants are told Don’t intubate anyone?’

Dr. David Neilipovitz: Yeah, that can happen. It would be naïve for us to think that triage or changes in standard of care have not already in effect come about.

We wrote Health Minister Christine Elliott about this worrisome danger back on February 25, 2021. She and the Ford Government have never answered. Here is what we asked:

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

3. Reflections on What is Being Said Now to defend the Ford Government’s Disability-Discriminatory Critical Care Triage Protocol and Plans

In the CBC national coverage, the defences offered for the disability discrimination in the Ontario critical care triage protocol are flat wrong.

Bogus Defence #1

The first bogus defence is for the Ontario Government’s defenders simply to deny reality. In the CBC News online story below, Dr. James Downar, author or co-author and lead defender of Ontario’s critical care triage protocol, denies there is any disability discrimination. He has earlier done this in other media. The April 19, 2021 CBC News online report states:

Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

The criteria that reference dressing or bathing oneself or going shopping, Downar said, do so only for patients with certain underlying conditions in this case, cancer or frailty syndrome who fall critically ill with COVID-19. And that’s because those kinds of assessments have been shown in research studies to be strong predictors of whether people with those underlying conditions will survive in the ICU, he said.

Dr. James Downar, who co-wrote Ontario’s ICU triage protocol, acknowledges it may have disproportionate effects on some groups. But he says it’s better than having no protocol and leaving it up to chance or vulnerable to doctors’ unconscious biases. (Ottawa Hospital Research Institute/The Canadian Press)

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.

Similarly, in the April 18, 2021 report on CBC’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated:

In my opinion, and for what it’s worth, is that disabilities do not factor in as a major factor to limit care.

Totally disproving that bogus defence, here are two illustrations of clear ways that a patient’s disability would explicitly be held against them when a doctor decides how likely the patient is to survive for one year, and hence be prioritized or deprioritized for critical care. First, the January 13, 2021 Critical Care Triage Protocol directs the use of the Clinical Frailty Scale as a tool for assessing some patients’ eligibility to be refused critical care, for patients over 65 with a progressive disease (like arthritis or multiple sclerosis). That Scale has doctors assess whether those patients, needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.

Second, for patients with cancer, the critical care triage protocol’s online calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

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

Both those doctors, denying disability discrimination, certainly should know what the Ontario critical care triage protocol says. After all, Dr. Downar wrote or co-wrote it. Dr. David Neilipovitz heads the Ottawa Hospital Critical Care Department.

The fact that doctors will assess a patient’s likely one year mortality is no answer to this concern. The critical care triage protocol makes disability a clear criterion for assessing that one year mortality risk for some patients.

Bogus Defence #2

In the quotation above, Dr. Downar argued that there is no disability discrimination because two people with the same disability might be assessed very differently. Here is that quotation again from the April 19, 2021 CBC News online report, set out in full below:

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.

That argument rests on the fatally flawed premise that disability discrimination only occurs if all people with the same disability are treated identically under the Ontario critical care triage protocol. That, however, is not how the Ontario Human Rights Code or the Charter of Rights’ equality disability rights provisions work.

Bogus Defence #3

It appears from the April 19, 2021 CBC News online report that Dr. Downar also tried to defend the Ontario critical care triage protocol by stating that it does not discriminate based on disability, because patients with certain named stable disabilities are not subject to assessment for critical care triage by considering if they can perform 11 activities of daily living without assistance. Repeating an argument he has made elsewhere in the media, (but not explicitly using his name here), the CBC report states:

Protocols in both Ontario and Quebec have explicit language that doctors are not to rely on someone’s disability in assessing their mortality risk. A frailty syndrome assessment is excluded, for instance, for people with “long-term disabilities (e.g. cerebral palsy), learning disabilities or autism.”

What that bogus argument boils down to is this: The critical care triage protocol does not discriminate against all people with disabilities. It only discriminates against some people with disabilities. Therefore, it does not discriminate against anyone based on disability.

That, of course, is no defence to disability discrimination. It is disability discrimination to discriminate against some patients because of some disabilities, without discriminating as well because of some other disabilities.

Compare this bogus argument to the context of racial discrimination. If a company refused to hire black people, it would be no defence to a claim of racial discrimination that the companied did hire some people from other racialized communities and only held a person’s racialized situation against them if their skin is black.

Bogus Defence #4

The fourth bogus defence put forward in this media reporting is that the Ontario critical care triage protocol is better than having no protocol at all. The online April 19, 2021 CBC article states:

Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases or an even cruder determination: first come, first served.

This bogus defence presupposes that the only way to do critical care triage is with the disability discrimination spelled out in the January 13, 2021 Critical Care Triage Protocol, and with no due process for patients. We do not agree. It is now clear that fully six members of The Government’s external advisory Bioethics Table also disagree with the general position presented in defence of the Ontario critical care triage protocol.

If those designing, approving and defending this protocol have so impoverished an approach to human rights, the Ford Government needs to find new people to design the triage protocol and plan who have a better approach.

4. Reminder Register to Attend Tonight’s Virtual Public Forum on Addressing the Disability Discrimination in Ontario’s Critical Care Triage Protocol and Plan

Please register to join us and other concerned disability organizations tonight at 7:30 p.m. for a virtual information session to learn more about Ontario’s triage protocol and why it matters. LEARN MORE AND REGISTER NOW! (ASL and closed captioning will be available)

For background on the AODA Alliance’s efforts to battle the danger of disability discrimination in critical care triage, visit the AODA Alliance website’s health care page.

MORE DETAILS

CBC News Online April 19, 2021

Originally posted at https://www.cbc.ca/news/health/covid-ontario-icu-triage-1.5992188

As ICUs fill up, doctors confront grim choice of who gets life-saving care

Ontario’s protocol for critical-care triage worries disability rights advocates Zach Dubinsky, Terence McKenna, Joseph Loiero, Albert Leung

A health-care worker cares for a COVID-19 patient in the ICU at Toronto’s Humber River Hospital. A number of Ontario medical professionals fear that they may be forced to start triaging ICU patients within weeks. (Nathan Denette/The Canadian Press)
Hospitals are shifting critically ill patients around, looking for any empty bed. Nurses and doctors are putting in exhaustion-defying amounts of overtime. Some provinces are opening new intensive care unit capacity.

But it may not be enough to stave off a point no one wants to reach in the pandemic when only a handful of ICU beds remain but a greater number of patients need those spots.

That point is drawing perilously close in Ontario and possibly parts of Saskatchewan, even as some other provinces don’t have a single hospitalized COVID-19 patient.

It means some of the hardest decisions health-care providers ever face will have to be made: who gets potentially life-saving care and who doesn’t.

“There are people who could be saved by critical care who aren’t going to get it,” said Dr. James Downar, a palliative and critical-care physician in Ottawa who co-wrote Ontario’s ICU protocol for when that awful moment strikes.

He hopes the protocol won’t be needed.

Ontario’s latest COVID-19 modelling ‘catastrophic,’ doctor says
Families torn apart. Workers at a breaking point. Inside a hospital system hit hard by 3rd wave of COVID-19
“It’s a difficult, difficult job to make such a call … and I hope it doesn’t happen.”

Decisions about how to ration life-saving care are never easy, Downar said and this one has been not only arduous but controversial. Bioethicists and human rights groups have raised concerns that Ontario’s protocol discriminates against people with disabilities.

Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases or an even cruder determination: first come, first served.

Level 1 triage could come in weeks
Ontario’s protocol is a work in progress and hasn’t officially been published, but the latest 32-page draft to be widely circulated among doctors looks like this:

Two physicians will independently assess any patient needing an ICU bed for their “short-term mortality risk” or STMR their likelihood of death within 12 months.
At the lowest level of triage, Level 1, anyone with short-term mortality risk greater than 80 per cent is de-prioritized for an ICU bed.
If the COVID-19 situation worsens and triage moves to Level 2, anyone with an STMR over 50 per cent is “not prioritized for critical care.”
If ICUs get even more strained and go to Level 3, only people with a less than 30 per cent risk of dying within the next year would be prioritized for a spot.
Level 1 triage might be reached within Ontario in the next two weeks if current trends continue.

Quebec has a similar ICU protocol in place, inspired by Ontario’s, that also contemplates bands of mortality risk at 80, 50 and 30 per cent.

Withdrawal of care would need government approval
An even more drastic scenario, contemplated but not yet a possibility, is that doctors could take people off life support to free up ICU space for someone deemed to have a higher chance of survival. For that to happen, the provincial government would have to enact new regulations.

That hasn’t happened yet, but one Ottawa woman says she already worries critical-care physicians are under increasing pressure from having to treat so many ICU patients.

Nadine Tabbara, left, poses with her father, Souheil Tabbara, 74, who entered the ICU at Ottawa Hospital on Feb. 1 with severe COVID-19. (Submitted by Tabbara family)
Nadine Tabbara said her 74-year-old father, Souheil, contracted COVID-19 and was admitted to the Ottawa Hospital intensive care ward Feb. 1 and put on a ventilator. He can’t speak or move his limbs.

Tabbara said doctors told her they want to withdraw life support because he is not getting better, but she worries the worsening COVID situation might be affecting his care.

“The ICU is full and the doctors are overwhelmed,” she said. “And I think they may be rushing to decisions like this.”

The hospital told the family its decision was medically motivated and it would have recommended the same approach even without COVID-19.

“Hospital capacity during the COVID-19 pandemic has not influenced access to critical care at all and does not influence decisions on moving to palliative care,” Ottawa Hospital said in a statement. “The decision to move patients from critical care to palliative care is one that no health-care worker takes lightly.”

With Ontario’s intensive care units approaching a breaking point, doctors are preparing to use triage protocols to determine which of the sickest patients there is capacity to save. 7:16

Protocol violates human rights, groups allege
One major problem with the province’s ICU decision-making protocol, a number of human rights groups and bioethics experts say, is that it risks only deepening inequities in health care.

Some of the more fiercely contested criteria for mortality risk, to be used in assessing critically ill COVID-19 patients with cancer or seniors suffering from a condition known as “frailty,” consider things like whether a patient is “capable of only limited self-care” or can dress, bathe, eat or walk without assistance, and whether they can handle their finances or go shopping.

Lawyer David Lepofsky calls Ontario’s ICU triage plan ‘raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer.’ (Simon Dingley/CBC)

“The only way to describe this is as raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer,” said lawyer and disability rights activist David Lepofsky, chair of the AODA Alliance, which has been campaigning to reform the Ontario ICU protocol since an early version emerged last spring.

“It explicitly makes having a disability count against you, and that is flagrantly contrary to the human rights code and the Canadian Charter of Rights and Freedoms.”

Pandemic made ‘exponentially scarier’
Lepofsky said doctors’ decisions on who lives and who dies won’t be subject to appeal, which denies patients and their families a fundamental right.

“If we had the death penalty, you’d have right to trial and due process,” he said.

Vivia Kay Kieswetter, a seminary student at Trinity College in Toronto and advocate for people with disabilities who has an autoimmune disorder, said reading Ontario’s ICU triage protocol has made the pandemic “exponentially scarier” for her.

“This is something that has been a source of additional stress and anxiety for those with disabilities over the course of this pandemic,” she said.

COVID-19 patients arriving ‘back to back’ at Vancouver General Hospital’s ICU, doctor says
VIDEO: ‘Very anxious’: ICU nurse describes what it’s like to treat COVID patients
Six of the bioethicists on the panel that helped draft the protocol published a dissent last week. They say the protocol doesn’t properly recognize that people with disabilities, Indigenous patients or people of colour could disproportionately be scored at a higher short-term mortality risk because of pre-existing inequities in society that weigh on their health “well before people are brought to the doors of an ICU.”

“Judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to … [consider] social disadvantage,” the dissenting bioethicists wrote.

‘Absolutely not … based on disability’
Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

The criteria that reference dressing or bathing oneself or going shopping, Downar said, do so only for patients with certain underlying conditions in this case, cancer or frailty syndrome who fall critically ill with COVID-19. And that’s because those kinds of assessments have been shown in research studies to be strong predictors of whether people with those underlying conditions will survive in the ICU, he said.

Dr. James Downar, who co-wrote Ontario’s ICU triage protocol, acknowledges it may have disproportionate effects on some groups. But he says it’s better than having no protocol and leaving it up to chance or vulnerable to doctors’ unconscious biases. (Ottawa Hospital Research Institute/The Canadian Press)

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.

Protocols in both Ontario and Quebec have explicit language that doctors are not to rely on someone’s disability in assessing their mortality risk. A frailty syndrome assessment is excluded, for instance, for people with “long-term disabilities (e.g. cerebral palsy), learning disabilities or autism.”

Still, Downar acknowledged that the effect of using short-term mortality risk to triage patients for ICU care “is going to necessarily affect some demographic groups more than others.”

“What we lack is a way to correct for it that would be fair, objective and that everybody would agree on. It’s not that we haven’t looked…. But so far we have yet to see one that would be fair.”

The National Post April 14, 2021
Originally posted at https://nationalpost.com/news/canada/surging-like-absolute-crazy-ontario-hospitals-pray-they-dont-reach-last-resort-stage-in-third-wave ‘Surging like absolute crazy’: Ontario hospitals ‘pray’ they don’t reach last-resort stage in third wave
The triage protocol would mean choosing which patients should be offered potentially life-prolonging care

Author of the article: Sharon Kirkey
A tent city has been erected in the parking lot of Toronto’s Sunnybrook hospital to handle a surge in COVID-19 cases. PHOTO BY PETER J. THOMPSON/NATIONAL POST/FILE

The idea of people being removed from intensive care, unhooked from ventilators that might have saved them to make room for someone else more likely to survive is almost unfathomable, says the president and CEO of Canada’s largest university hospital.

I believe we’ll fight that one as long as humanly possible, and I pray we never get to the point of having to consider that, said Dr. Kevin Smith, head of Toronto’s University Health Network and co-chair of Ontario’s COVID-19 critical care table.

Staged withdrawals of life-support from people with low chances of survival are not part of a 32-page emergency triage protocol that would be enacted should Ontario ICU’s become saturated.

Only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to give that care to someone with better prospects, the College of Physicians and Surgeons of Ontario said in a notice to physicians last week.

The triage protocol would, however, mean choosing which new patients should be offered potentially life-prolonging care who to admit and who not to admit to the ICU, whether for COVID or a heart attack.

Hospitals are working flat out to avoid enacting the protocol transferring hundreds of patients from hot spots to communities with extra space, cancelling non-urgent surgeries to free up 700 critical care beds, and redeploying nursing and other health-care staff.

Is it optimal and what we’d love to be doing? No. It’s where we find ourselves at this point in this rapid growth of the pandemic, Smith said.

Admissions to ICUs have not only been rising, people are arriving in emergency rooms needing intensive care immediately. The virus has attacked them, literally, so quickly, it over came them so fast that some are arriving in emergency desperately ill, before even having been tested for COVID, said Vicki McKenna, a registered nurse and provincial president with the Ontario Nurses Association.

As of midnight Monday, 1,892 people were in intensive care in Ontario hospitals, roughly a third 623 with COVID.

Should the number of people with or without COVID needing critical care approach 3,000, that’s when we’re going to be precariously close to having to consider other options, and much less attractive options, Smith said.

Those options include treating ICU patients outside ICUs, staffing ratios we wouldn’t be very pleased by or comfortable with, more field hospitals, bringing in doctors who don’t normally practise in hospitals, air lifting patients to Sudbury or Thunder Bay, and, of course, last resort, thinking about the triage tool, Smith said.

MORE ON THIS TOPIC

A recent study found that the neighbourhoods in Toronto and Peel region that had the most essential workers and lowest incomes had the great number of COVID-19 cases.

What the numbers fail to tell us about how and where COVID-19 spreads
According to a Statistics Canada report last month, this country saw 13,798 more deaths than would be expected by mid-December of 2020, based on previous years and after accounting for the aging population. How ‘excess deaths’ show COVID-19’s real impact

Nationally, more than 3,000 people with COVID were being treated in hospital each day over the past seven days, a 29 per cent increase over the previous week. ICU admissions are up 24 per cent.

The number of deaths has averaged around 30 a day for several weeks, a dramatic drop from the peaks of wave one and two, when Canada saw the highest rates of nursing home deaths globally. Deaths are down because jurisdictions prioritized seniors in long-term care and retirement home for vaccines.

But if rapidly spreading variants make more people severely ill, that mortality trend could change, federal health officials warned Tuesday.

British Columbia saw a record 121 people with COVID in critical care on Monday, and hospitalizations are starting to stretch the capacities of some hospitals in Metro Vancouver, the Vancouver Sun reported. Provincial health officer Dr. Bonnie Henry is pleading with British Columbians to not leave their neighbourhoods as the fearsome Brazilian P.1 variant spreads. Quebec is also reporting a rise in hospitalizations and ICU admissions.

Under an emergency protocol for a major surge developed for Ontario hospitals, those with the best chance of surviving 12 months would be given priority for an ICU bed.

In Ontario, we’re moving patients like absolute crazy; we’re surging like absolute crazy, one critical care specialist said. Ontario quietly issued emergency orders last week allowing hospitals to transfer patients to other hospitals, if needed, without their consent.

About 1,300 to 1,400 people have been shuttled around the province so far, mostly from the GTA to southern Ontario, and it isn’t without the realization of how stressful that is for families, Smith said.

Ontario reported 3,670 new COVID cases Tuesday, down from Sunday’s 4,456 record high. But infections are based on exposures a week or so ago. And hospital admissions and deaths lag infections by a week or two.

Today’s ICU admissions reflect when case numbers in Ontario were in the 2,000-range, said Ottawa critical care physician Dr. James Downar. Very likely the stay-at-home order, coupled with the delayed March (school) break, will have the effect of blunting and flattening this a little bit. But that’s going to take a while.

Among his concerns, super-loading nurses. Ontario already had the worst registered nurse-to-population ratio of all Canadian provinces before the pandemic. ICU nurses are highly specialized and after 14 months of the pandemic are burning out.

Normally in the ICU, it’s a one-to-one, nurse-patient ratio. Occasionally, they might have two patients. But when they get added, and loaded up, that’s when the situation is unbearable for the nurse, and very high concern of course for the number of patients they’re trying to care for at any one time, McKenna said.

Under an emergency protocol for a major surge developed for Ontario hospitals, those with the best chance of surviving 12 months would be given priority for an ICU bed. The protocol includes a short-term mortality risk calculator physicians could use to input information on the person’s condition whether they have heart failure, cancer, chronic liver disease or severe COVID that gives the person’s triage priority score.

While no one wants it, it’s a rational approach based on core principles and criteria, said Downar, one of the authors. You apply the same rule to everybody.

The group Accessibility for Ontarians with Disabilities Act Alliance has said the protocol is discriminatory, reduces life and death decisions to a cold digitized computation and, if consent legislation was changed, would allow doctors to evict someone from critical care.

Quebec hospitals haven’t yet been hit hard in the third wave, despite rising infections. However, Montreal ICUs are still dealing with people who survived COVID in the second wave, and need critical care for respiratory compromise, said Dr. Peter Goldberg, director of critical care at the McGill University Health Centre.

About one-third of all our ICU beds are committed to either active or recovering COVID patients, Goldberg said in an email.

I can’t imagine that we’ll escape another ICU admission blip over the next couple of weeks, he said. But he added, thankfully, there are no discussions about implementing Quebec’s triage protocol.

Email: [email protected] | Twitter: sharon_kirkey




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Six Bio-Ethicists on Ontario Government’s “Bioethics Table” Confirm Ongoing Concerns Raised by Disability Organizations regarding the Discriminatory and Secret Plans for the Triaging of Critical Care


Accessibility for Ontarians with Disabilities Act Alliance
ARCH Disability Law Centre

NEWS RELEASE – FOR IMMEDIATE RELEASE

April 19, 2021 Serious objections that have been raised by disability groups for over one year regarding Ontario’s plans for triaging life-saving critical care have been validated and echoed by a number of the very individuals that were advising the Ontario Government on it. In a revealing article by six bio-ethicists that advised the Government on what should be included in Ontario’s directions for rationing life-saving critical care, alarm bells continue to be rung with serious concerns that they raise including: the lack of transparency and public engagement in developing the Triage Protocol, the failure to consider social determinants of health, the prioritization of utilitarianism over human rights, and the reliance on problematic clinical tools that compound health inequities.

Last year, in April 2020, a Triage Advisory Committee (TAC) was formed by ARCH Disability Law Centre to come together in order to consult with and bring forward concerns of disability communities in Ontario flowing from the then newly leaked March 28, 2020 version of Ontario’s critical care Triage Protocol. The TAC is made up of representatives from various disability organizations and academics which includes the Accessibility for Ontarians with Disabilities Act (AODA) Alliance; ARCH Disability Law Centre; Canadian Down Syndrome Society; Centre for Independent Living in Toronto; Citizens With Disabilities Ontario (CWDO); Community Living Ontario; Disability Law Intensive Program – Osgoode Hall Law School, York University; Lupus Canada; Muscular Dystrophy Canada; and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto.

Over the last 12 months, and through ARCH and the AODA Alliance, TAC has tried to express its concerns repeatedly to the Bioethics Table, to the Ontario Government, and to the public. Despite this, the Ontario Government has failed to meet with us or to ensure that Ontario’s critical care triage protocol and plans are free of unlawful discrimination contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

The Ontario Government’s continued assertion that it has not authorized any Triage Protocol is especially of concern when the latest version of the critical care Triage Protocol, dated January 13, 2021, has been sent to all Ontario hospitals and subsequent training has been offered to hospitals and doctors that urges doctors and hospitals to use it. This Triage Protocol includes several problematic clinical assessment tools that discriminate against persons with disabilities and risks physicians making guestimates on who should be refused life-saving critical care.

The Ontario Government has had 14 months to ensure that lawful and constitutional directions are in place to ensure that decisions on who is to be refused life-saving critical care are free of unlawful discrimination.

As the third wave of the COVID-19 pandemic continues to strain Ontario’s healthcare system in unprecedented ways, TAC urgently calls for the Ontario Government to:

1. Now make public the current version of the critical care triage protocol, all reports and recommendations regarding critical care triage by its external Bioethics Table since September 11, 2020, the Government’s plan of action for rolling out critical care triage if needed, and the content and results of drills or simulations of critical care triage held at any Ontario hospitals.

2. Remove unlawful discrimination, including disability discrimination, from the January 13, 2021 Critical Care Triage Protocol, and substantially reduce the one year likely survival threshold for assessing who gets priority for receiving critical care during a period of critical care triage.

3. Uphold the current law and ensure that doctors will not be permitted to remove or withdraw life-saving critical care from a patient already receiving it, without that patient’s consent.

4. Not give a financial blank cheque to doctors and hospitals in advance (indemnification), nor should the College of Physicians and Surgeons of Ontario give doctors a regulatory blank cheque, if they rely on disability-discriminatory directions.

5. Immediately hold a public consultation on how critical care triage should be conducted.

6. Ensure that Ontario’s critical care triage plan and protocol are properly prescribed by law, by introducing legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

Contact:

AODA Alliance Chair David Lepofsky
Email: [email protected]
Twitter: @aodaalliance

Robert Lattanzio, Executive Director
ARCH Disability Law Centre
Toll-free: 1-866-482-2724 extension 2233
Email: [email protected]

For more background on this issue, check out:
1. The AODA Alliance website’s health care page, detailing its efforts regarding critical care triage and generally, its 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.
2. The ARCH Disability Law Centre website’s COVID-19 page offers more about ARCH’s work on the clinical triage protocol, including a September 15, 2020 published article, visitation ban policies, access to technology and other issues concerning the rights of persons with disabilities during the COVID-19 crisis.




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Disability Groups Present 6 Steps for the Ford Government to Repair Disability-Discriminatory Critical Care Triage Protocol – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance

ARCH Disability Law Centre

 

NEWS RELEASE – FOR IMMEDIATE RELEASE

 

Six Bio-Ethicists on Ontario Government’s “Bioethics Table” Confirm Ongoing Concerns Raised by Disability Organizations regarding the Discriminatory and Secret Plans for the Triaging of Critical Care

 

April 19, 2021 – Serious objections that have been raised by disability groups for over one year regarding Ontario’s plans for triaging life-saving critical care have been validated and echoed by a number of the very individuals that were advising the Ontario Government on it. In a revealing article by six bio-ethicists that advised the Government on what should be included in Ontario’s directions for rationing life-saving critical care, alarm bells continue to be rung with serious concerns that they raise including: the lack of transparency and public engagement in developing the Triage Protocol, the failure to consider social determinants of health, the prioritization of utilitarianism over human rights, and the reliance on problematic clinical tools that compound health inequities.

Last year, in April 2020, a Triage Advisory Committee (TAC) was formed by ARCH Disability Law Centre to come together in order to consult with and bring forward concerns of disability communities in Ontario flowing from the then newly leaked March 28, 2020 version of Ontario’s critical care Triage Protocol. The TAC is made up of representatives from various disability organizations and academics which includes the Accessibility for Ontarians with Disabilities Act (AODA) Alliance; ARCH Disability Law Centre; Canadian Down Syndrome Society; Centre for Independent Living in Toronto; Citizens With Disabilities – Ontario (CWDO); Community Living Ontario; Disability Law Intensive Program – Osgoode Hall Law School, York University; Lupus Canada; Muscular Dystrophy Canada; and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto.

Over the last 12 months, and through ARCH and the AODA Alliance, TAC has tried to express its concerns repeatedly to the Bioethics Table, to the Ontario Government, and to the public. Despite this, the Ontario Government has failed to meet with us or to ensure that Ontario’s critical care triage protocol and plans are free of unlawful discrimination contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

The Ontario Government’s continued assertion that it has not authorized any Triage Protocol is especially of concern when the latest version of the critical care Triage Protocol, dated January 13, 2021, has been sent to all Ontario hospitals and subsequent training has been offered to hospitals and doctors that urges doctors and hospitals to use it. This Triage Protocol includes several problematic clinical assessment tools that discriminate against persons with disabilities and risks physicians making guestimates on who should be refused life-saving critical care.

The Ontario Government has had 14 months to ensure that lawful and constitutional directions are in place to ensure that decisions on who is to be refused life-saving critical care are free of unlawful discrimination.

As the third wave of the COVID-19 pandemic continues to strain Ontario’s healthcare system in unprecedented ways, TAC urgently calls for the Ontario Government to:

  1. Now make public the current version of the critical care triage protocol, all reports and recommendations regarding critical care triage by its external Bioethics Table since September 11, 2020, the Government’s plan of action for rolling out critical care triage if needed, and the content and results of drills or simulations of critical care triage held at any Ontario hospitals.
  1. Remove unlawful discrimination, including disability discrimination, from the January 13, 2021 Critical Care Triage Protocol, and substantially reduce the one year likely survival threshold for assessing who gets priority for receiving critical care during a period of critical care triage.
  1. Uphold the current law and ensure that doctors will not be permitted to remove or withdraw life-saving critical care from a patient already receiving it, without that patient’s consent.
  1. Not give a financial blank cheque to doctors and hospitals in advance (indemnification), nor should the College of Physicians and Surgeons of Ontario give doctors a regulatory blank cheque, if they rely on disability-discriminatory directions.
  1. Immediately hold a public consultation on how critical care triage should be conducted.
  1. Ensure that Ontario’s critical care triage plan and protocol are properly prescribed by law, by introducing legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

Contact:

AODA Alliance Chair David Lepofsky

Email: [email protected]

Twitter: @aodaalliance

Robert Lattanzio, Executive Director

ARCH Disability Law Centre

Toll-free: 1-866-482-2724 extension 2233

Email: [email protected]

For more background on this issue, check out:

  1. The AODA Alliance website’s health care page, detailing its efforts regarding critical care triage and generally, its 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.
  2. The ARCH Disability Law Centre website’s COVID-19 page offers more about ARCH’s work on the clinical triage protocol, including a September 15, 2020 published article, visitation ban policies, access to technology and other issues concerning the rights of persons with disabilities during the COVID-19 crisis.



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