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 Toronto Star Guest Column Blasts the Ford Government’s Critical Care Triage Plans and the Government’s Harmful Secrecy Surrounding Those Plans


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

May 7, 2021

SUMMARY

Below is an important guest column that ran in the May 7, 2021 Toronto Star in the print newspaper and online, by AODA Alliance Chair David Lepofsky. It summarizes the serious problems with Ontario’s critical care triage protocol and plans. Even if the crisis in Ontario hospitals seems to be levelling off for the moment, it is still very important that the Ford Government address these issues which people with disabilities have been raising for over a year.

We encourage you to:

1. Write a letter to the editor at the Toronto Star with your comments on this guest column. Email the Star at: [email protected]

Encourage the Star to give this topic as much attention as possible.

2. Forward this guest column to your member of the Ontario Legislature with your comments.

3. Share this guest column on social media like Facebook and Twitter. Encourage others to read it and to share it with others. The link to post that takes people right to the Toronto Star guest column is https://www.thestar.com/opinion/contributors/2021/05/07/ontarios-triage-protocol-unlawfully-discriminates-against-people-with-disabilities.html

4. Send this guest column to your local media and to any reporters you know. Encourage them to cover this disability issue, which touches the lives of so many Ontarians. Phone in to call-in radio programs to raise this issue. Tell them how you feel about the danger of disability discrimination in Ontario’s critical care triage protocol.

For more background, check out and widely share:

1. The new captioned online video by AODA Alliance Chair David Lepofsky that explains the entire critical care triage protocol issue from a disability perspective, for those who don’t know the ins and outs.

2. The AODA Alliance’s February 25, 2021 report that details serious problems with the Ontario critical care triage protocol.

3. The AODA Alliance website’s health care page.

Toronto Star May 7, 2021

Originally posted at: https://www.thestar.com/opinion/contributors/2021/05/07/ontarios-triage-protocol-unlawfully-discriminates-against-people-with-disabilities.html Editorial

Triage protocol unlawfully discriminates against disabilities

David Lepofsky Contributor

People with disabilities are disproportionately prone to get COVID-19, to suffer its worst effects and to die from it. Cruelly compounding this, Ontario’s protocol for triage of critical care would explicitly discriminate against some patients with disabilities who need life-saving critical care. People with disabilities deserve better.

If overloaded ICUs can’t accommodate all patients, rationing or “triage” means some patients will die because doctors will deny them needed critical care. We need a lawful protocol to govern such decisions. Ontario’s protocol isn’t lawful in part because of its disability discrimination.

For example, Ontario’s protocol would rank a cancer patient lower depending on their disability’s severity. That’s blatant disability discrimination. As well, patients over 65 with progressive diseases (e.g., MS, arthritis or Parkinson’s) are ranked lower for each of these activities they can’t do independently: get out of bed, eat, shop, use the phone or do finances.

Ontario’s protocol treats you like a blob on a gurney with no due process and no say. Two doctors rank you and give you the bad news.

With your life at stake, you cannot get the decision reviewed, even on a lightning-fast basis.

No wonder the Ontario Human Rights Commission, disability organizations and six bioethicists on Premier Ford’s advisory Bioethics Table all voiced serious objections. Ford’s approach is dangerously wrong. The protocol was developed and sent to hospitals in secret, with no public consultation by the government’s decision-makers. It isn’t on the government website. (We posted a leaked copy on www.aodaalliance.org.)

Some doctors and others are calling the shots in government back rooms. That is unfair to the public, people with disabilities and triage doctors.

Doctors use this protocol at their peril. Premier Ford is tap-dancing in a constitutional minefield. It’s wrong to direct doctors on who lives or dies by memo. Even worse, Ford may try to suspend the requirement that a patient must consent before needed care is discontinued.

Those defending the protocol argue it doesn’t discriminate because it says a patient’s stable disability, like autism, mustn’t be held against them. Yet the protocol discriminates against others based on progressive disabilities.

Government must remove disability discrimination from Ontario’s critical care triage protocol. It must afford due process to patients whose lives are in jeopardy. Instead of hiding and ducking questions, the premier should hold an open debate and pass legislation governing this, with public input.

The government must commit that if critical care triage occurs, it will daily report the number of people who are refused needed critical care due to triage. If Ford sombrely announces that the pandemic emergency requires critical care triage, remember he’s secretly planned for this possibility for over a year.

David Lepofsky is chair of the Accessibility for Ontarians with Disabilities Act Alliance.




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if Hospital Overloads Require Critical Care Triage, Will the Ford Government Agree to Tell the Public the Daily Numbers of Patients Refused Life-Saving Critical Care They Need?


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 27, 2021

SUMMARY

The AODA Alliance just wrote the Ford Government to request that key information about its critical care triage plans be immediately made public. That letter is set out below. The possibility that life-saving critical care will have to be rationed or “triaged” gets closer as ICUs get fuller and fuller.
We asked the Ford Government to release any critical care triage protocols for doctors to use for adult patients, for patients under 18, and for any patient if the Government tries to give doctors the terrifying power to remove critical care from patients without their consent.
We ask for any directions or draft directions for ambulance crews on whether or when they should refuse life-saving care to a patient needing it when called to an emergency. We ask for results of practice drills run by Ontario hospitals on how they’d decide who gets refused life-saving critical care. The public should know how differently each hospital would deal with this.
Every day, the Government makes public statistics on the number of new COVID-19 cases, the number of patients in ICUs, and the number of COVID-19 deaths. We ask the Ford Government to commit that if critical care triage must take place, the Government will make public the number of patients each day who are refused critical care they need due to triage. The public has a right to know this and all the information we seek.
Our requests build in part on a very disturbing article in the April 26, 2021 Globe and Mail by reporter Jeff Gray. We set that article out below and quote it in our letter to the Ford Government.
Will the Ford Government answer this letter, provide the information we seek, and have its officials speak to us about our concerns? As the letter explains, the Government refused to answer any of the eight earlier well-researched letters that we sent on this topic. Its officials, all the way up to the Health Minister, have not met with us or spoken to us about our concerns. The Premier’s Office has been no better.
We keep hearing from people with disabilities that they are frightened and angry about the Ford Government’s approach to this critical care triage issue. This is so especially after they have had to put up with a year of suffering disproportionately from the COVID-19 pandemic and from the Ford Government’s ongoing failure to effectively address their urgent needs in its emergency planning. The Ford Government’s relentless secrecy in this area fuels that anger and fear.
We deeply appreciate the hard work of our front-line health professionals and all health care workers who are trying to cope with the ICU overload that keeps spiraling out of control. We believe that doctors don’t want to have to undertake critical care triage. We also believe that they don’t want the Ford Government to set them up to engage in disability discrimination if that critical care triage must take place. To learn more about this issue, visit the AODA Alliance’s health care web page. MORE DETAILS
April 26, 2021 AODA Alliance Letter to Ontario Health Minister Christine Elliott

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

April 26, 2021

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

Dear Minister,

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

We are in a crisis. Ontario is very close to having to ration or triage life-saving critical care. This is because hospitals have record-breaking demands on intensive care units.

For over a year, people with disabilities have disproportionately suffered from the pandemic’s worst hardships. Under Ontario’s critical care triage plans, they are in danger of also suffering from disability discrimination in access to life-saving critical care. Disability discrimination fatally infects the January 13, 2021 Critical Care Triage Protocol.

For example, if a cancer patient needs critical care, they will be deprioritized if a patient is “Completely disabled and cannot carry out any self-care; totally confined to bed or chair”. As another example, if a patient needing critical care is over 65 and has a progressive disease (like MS, arthritis or Parkinson’s), their access to critical care is reduced depending on how few of eleven activities of daily living they can perform without assistance. This includes dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their finances. That is disability discrimination, pure and simple.

The Ontario Government’s pervasive secrecy over its critical care triage plans has made many people with disabilities terrified, angry and distrustful. The parts of the Ontario critical care triage plan that have leaked to the public make that fear and distrust justified.

The public has a right to know what the Government is planning or considering for critical care triage. We ask you to make those critical care triage plans, draft plans, not-yet-approved plans, and options all public now, such as the following:

1. Please make public the current version of the Ontario critical care triage protocol that has been sent to Ontario hospitals. The Government has never made it public. In contrast, we publicly posted the January 13, 2021 Critical Care Triage Protocol, which was leaked. Please advise if it has been altered since January 13, 2021, or if a more recent version has been sent to hospitals.

2. The April 26, 2021 Globe and Mail included a report by Jeff Gray, confirming that a second critical care triage protocol has also been developed. That report states:

“The other protocol is referred to as the “Critical Care Triage Protocol.” According to a document summarizing it and obtained by The Globe and Mail, it is largely the same, but assumes that cabinet issues an executive order overriding the province’s Health Care Consent Act and allowing existing ICU patients to be disconnected from life support without consent.”

Please give us a copy of that second critical care triage protocol i.e. one that is meant to be used if the Cabinet or Legislature were to suspend the operation of the Health Care Consent Act (even if that second protocol is a draft or has not yet been approved). That second protocol would apply if the Government tried to give doctors the power to unilaterally take critical care away from a patient who is already receiving it and who does not consent to its withdrawal. We are on record opposing the Government giving any such powers to doctors. We have cautioned that any doctor would do so, or would use the January 13, 2021 Critical Care Triage Protocol at their peril.

3. In a January 23, 2021 webinar to train front-line doctors on how to use the January 13, 2021 Critical Care Triage Protocol, it was suggested that Ontario may have given a direction or draft direction to ambulance crews and related emergency services, and/or would be doing so, on EMTs or other ambulance crews undertaking some form of critical care triage on patients even before they arrive at hospital. In our February 25, 2021 letter to you, we asked (referring to the AODA Alliance’s February 25, 2021 report on Ontario’s critical care triage plans):

“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.”

Your Government never answered that letter. You also did not answer this question when you were asked in the Legislature during Question Period on April 21, 2021.

Please give us any directions or draft directions that have been sent to any ambulance or emergency services or emergency medical technicians (EMTs), or that are prepared for or are being considered for distribution to them, on the possibility of their taking part in any form of critical care triage on patients before the patient gets to hospital.

4. We understand that in addition to the January 13, 2021 Critical Care Triage Protocol (which applies to adult patients), a different critical care triage protocol was developed for patients under the age of 18. We have never seen it or been consulted on it. We have been told nothing about its contents. Could you please give us any protocol or draft protocol now in circulation or prepared for circulation on critical care triage for patients under age 18?

5. If critical care triage is directed or takes place, will your Government commit to swiftly and daily make public the number of people who are denied critical care, or from whom it is withdrawn without the patient’s consent? The public deserves to know this on an immediate basis, along with the other important COVID-19 statistics that are made public each day.

6. The April 26, 2021 Globe and Mail also reported that some Ontario hospitals have been conducting practice drills or simulations with critical care triage. This is to develop experience and familiarity in case critical care triage becomes necessary. On February 25, 2021, we made public the fact that Ontario hospitals were urged to do so.

Is the Government tracking those simulations? Will you make public the results of these drills or simulations, including the hypothetical cases that are used in these drills. The public has a right to know how consistently or inconsistently critical care triage would be handled, depending on which hospital is doing it. The public also deserves to know who would live and who would die as a result of critical care triage, according to these simulations.

Minister, in the past days, your Government has substantially reconsidered and changed its policy in a number of important areas concerning the COVID-19 pandemic. It is urgent for you to now do the same with Ontario’s plans and protocol for critical care triage, so that Ontario is ready in the event that such triage becomes necessary.

The need for your Government to end its secrecy on this issue of life and death is all the more pressing since the Government’s own advisory Bioethics Table has called for openness. As well, fully six members of that Bioethics Table have publicly criticized your Government’s plans regarding critical care triage. Their voices supplemented the concerns voiced by the Ontario Human Rights Commission.

The Government has left it to one of the critical care triage protocol’s authors to publicly defend the Ontario protocol. Defences offered in its defence are transparently meritless.

That protocol’s explicit disability discrimination, described above, is incorrectly and baldly denied. It was argued in its defence that this is not disability discrimination, since some disabilities are not deprioritized for critical care under it. That is like arguing that an employer who refuses to hire Muslims does not discriminate based on religion, because that employer is nevertheless willing to hire Jews.

In the protocol’s defence, it was argued as well that the protocol can’t be disability discriminatory, because under it, two people with the same disability might not be assessed the same during triage. That argument rests on the bogus idea that the policy must discriminate against all people with disabilities with equal cruelty before it is disability discrimination against any people with disabilities. See further the April 20, 2021 AODA Alliance Update.

We ask you to answer this letter, and to meet with us and others from Ontario’s disability community, in this urgent situation. Neither you nor your Government’s officials who are making decisions in this area have met with us to discuss our concerns, despite our requests.

You have not answered any of our eight earlier letters to you over the past seven months. Those letters detail serious and well-researched objections to disability discrimination in Ontario’s critical care triage plans, including the AODA Alliance’s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to you.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance CC:
Premier Doug Ford [email protected]
Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected]
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]
Robert Lattanzio, Executive Director, ARCH Disability Law Centre [email protected]

Globe and Mail April 26, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-doctors-prepare-for-worst-case-covid-19-triage-decisions/?cmpid=rss&utm_source=dlvr.it&utm_medium=twitter News Ontario doctors prepare for worst-case triage calls
By JEFF GRAY
Staff
Ontario doctors have been taking part in virtual training sessions on the province’s worst-case scenario COVID-19 emergency triage protocol, using role-play to practise telling families their loved ones are ineligible for life-support.

The triage protocol would employ a series of metrics to score incoming patients on their likelihood of survival in 12 months. If COVID-19’s growth outstrips all current efforts to expand the intensive-care system, transfer patients to other hospitals across the province and draft in extra staff, the protocol would reserve scarce ICU beds for those deemed more likely to survive.

The province’s rapidly swelling intensive care units were home to a record 851 COVID-19 patients as of Sunday and some hospitals were still familiarizing their staff with the complex triage system that could be enacted.

Erin O’Connor, deputy medical director of the emergency departments in the University Health Network, which includes Toronto General, Toronto Western and Princess Margaret hospitals, said her simulation team has been running role-play training sessions on the protocol since the second wave. But now, she is fielding calls from other hospitals that are trying to prepare for the worst.

“Honestly, it’s terrifying for all of us,” Dr. O’Connor said. “And we are all just trying to brace ourselves and prepare ourselves as well as we possibly can to deliver the best care we can in a situation where we don’t have unlimited resources.”

Ontario has ramped down all non-emergency surgeries and procedures to try to accommodate the current COVID-19 surge.

It is trying to encourage the shifting of elderly patients from hospitals into empty spaces in longterm care. It has also been moving hundreds of critical-care patients a week – by helicopter, ambulance and even a retrofitted bus – from packed hotspot hospitals in the Greater Toronto Area to ICUs as far away as Kingston.

In addition to military-style tents set up alongside hospitals, the province is installing makeshift ICUs in operating rooms and recovery rooms. And ICU nurses are working with teams of redeployed, less-experienced staff to oversee more patients, said Chris Simpson, executive vice-president of Ontario Health, the government agency that oversees the health system, and a Kingston cardiologist.

Modelling from the province’s COVID-19 Science Advisory table predicted a peak of at least 1,500 virus cases in ICUs by the first week of May, and possibly as many as 2,000. That’s as many ICU beds as Ontario has now in total, filled with more than 800 COVID-19 patients and about 1,200 non-COVID-19 patients.

Theoretically, with the existing ICU system running all out, it could accommodate a maximum of 2,300. On top of that, Ontario Health has told hospitals to find staff and space for more than 1,000 additional beds, many of which would be ICU-like beds operated with fewer staff.

If the system can manage all that expansion, and do it fast enough, officials hope the worst can be avoided. But nobody knows if this is doable – or how long it could be sustained. And everyone agrees that at these numbers, the quality of care would be severely compromised.

Most agree it already is.

“I think that’s kind of a stretch goal where we think we could get,” Dr. Simpson said, adding that every corner of every hospital is being scoured for space and staff. “If it does come to using the triage tool, I think we need to be able to say we have absolutely maximized and done everything we possibly could.”

If the system as a whole, or a hospital or a regional group of hospitals, completely runs out of space but faces a queue of critically ill patients – whether they are suffering from COVID-19, or car collisions, or heart attacks – drastic decisions may need to be made.

There are actually two protocols, neither of which has been formally made public. Ontario Health Minister Christine Elliott has said repeatedly that no protocols have been approved and refused to release them. Disability rights groups and the Ontario Human Rights Commission have raised concerns about potential discrimination against the disabled.

According to a leaked copy of one protocol, known as the “Emergency Standard of Care” and circulated to hospitals in January, two doctors would evaluate each incoming patient, using a set of criteria to determine their chances of survival. A webbased calculator may also be used to plug in the data about a patient’s condition. Ties could see a randomizer website make the final call.

It would be phased in: At Level 1 triage, all patients with more than an 80-per-cent chance of death after 12 months would be “deprioritized” for ICU beds and instead receive palliative care. At Level 2, the cutoff becomes a more than 50-per-cent chance of death at one year. At Level 3, it moves to just 30 per cent.

According to the leaked copy of the Emergency Standard of Care, it is up to the Ontario-wide Critical Care COVID-19 Command Centre to declare when to use it.

The other protocol is referred to as the “Critical Care Triage Protocol.” According to a document summarizing it and obtained by The Globe and Mail, it is largely the same, but assumes that cabinet issues an executive order overriding the province’s Health Care Consent Act and allowing existing ICU patients to be disconnected from life support without consent. Such an order, some doctors say, would save more lives, as those in ICUs with little hope of survival could be removed to make way for new patients with better chances.

Whether the system can surge enough to avoid either scenario, doctors say, also depends on how quickly the province’s stay-athome order and retail and restaurant shutdowns – and its hotzone vaccination push – can start to push down infection numbers.

But ICU numbers, which lag those daily new infection counts, are expected to keep rising in the near term. Plus, those who end up in ICU with COVID-19 are now staying longer.

Ontario registered 3,947 new infections on Sunday, pushing the seven-day average down slightly to 4,051 – below the more recent worst-case projections.

There were 24 deaths.

Whatever happens, many doctors warn the system is already triaging by another name.

Everything from cancer procedures to heart surgeries are being postponed. Plus, crowded, understaffed makeshift ICUs will result in more deaths for both COVID-19 and non-COVID-19 patients, said James Downar, a specialist in critical care at the Ottawa Hospital who was involved in drafting the triage protocols. Whether it makes sense depends on how long the surge lasts, he said.

“The question isn’t, ‘When do we start triage?’ It’s ‘When do we change the way we are triaging?’ ” he said.

Already, reports of the surge’s collateral damage are surfacing.

Nir Lipsman, a neurosurgeon at Toronto’s Sunnybrook Hospital, posted on Twitter last week that a young patient with head trauma was left without an operating-room slot as the hospital was jammed with COVID-19 patients.

After rearranging some patients and bringing in extra nurses, his team was able to make this surgery happen.

“This is the domino effect, the downstream effect, of this wave that we are experiencing,” Dr.

Lipsman said.




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As The Ford Government Back-Pedals and Scrambles to Re-Invent Its Response to the COVID-19 Crisis, Will It Make Public and Fix Its Disability-Discriminatory Critical Care Triage Plans?


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

April 22, 2021

SUMMARY

The Ford Government appears shell-shocked, as it flip-flops, back-tracks and scrambles to respond to the imminent threat that Ontario will run out of space and staff to deliver life-saving critical care to all patients who need it.
Here are yet more recent developments in the non-partisan campaign to try to ensure that people with disabilities will not face disability discrimination in access to life-saving critical care, if that care is rationed or triaged. Regrettably, the Government has shown no willingness to lift the fog of secrecy over its critical care triage plans, to talk directly to disability advocates and organizations about it, or to fix the serious problems with its critical care triage protocol and plans. 1. The Latest Developments in a Nutshell

1. On Tuesday night, April 20, 2021, a very successful online virtual public forum was held to discuss the critical care triage issue as it affects people with disabilities. Key speakers were AODA Alliance Chair David Lepofsky and ARCH Disability Law Centre Executive Director Robert Lattanzio. We are thrilled that an impressive 280 people took part. They got action tips on how to help with our fight against the danger of disability discrimination in critical care triage, if triage takes place.
We all wish there was more time to take all the questions that so many wanted to ask. A huge thank you goes to all who helped organize this event, and all who took the time to attend it.
2. The disability objections to Ontarios controversial critical care triage protocol and plans were raised on Tuesday, April 20 and Wednesday April 21, 2021 in the Ontario Legislatures Question Period. Below, you can read these exchanges and our reflections on them.

3. On Wednesday, April 21, 2022, Ontario New Democratic Party disabilities critic Joel Harden held a virtual Queens Park news conference, focusing on disability objections to Ontarios critical care triage protocol and plans. The speakers that MPP Harden invited to make remarks included AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre legal counsel Mariam Shanouda, and Disability Justice Network of Ontario co-founder Sarah Jama. The AODA Alliance appreciated the opportunity to contribute to this event. As a non-partisan coalition, we take part in news conferences convened by any of the political parties to which we are invited, where the event provides a helpful platform to raise our issues.
Arising out of this well-attended news conference, the NDP issued a news release on April 21, 2022, set out below. It includes a quotation from AODA Alliance Chair David Lepofsky setting out our position. It includes quotations from the other speakers as well.
4. The influential publication QP Briefing ran a strong article on April 21, 2021, arising from that days news conference. We set it out below.
5. The April 22, 2021 online edition of the Ottawa Citizen includes a guest column on the triage issue by NDP disabilities critic Joel Harden. We also provide it for you in this Update.
2. Yet More Reflections on Ongoing Ford Government Failure to Respond to Our Disability Concerns with Its Critical Care Triage Protocol and Plans

1. We have gotten more and more feedback from people with disabilities about the critical care triage disability objections. We keep hearing that people are frightened and angry. As if the COVID-19 pandemic was not bad enough, this issue makes them feel even more vulnerable and at risk.
At the same time, the message we all hear from the public around Ontario over the past six days has been louder than ever: The Ford Governments response to the COVID-19 pandemic needs a major re-think, and fast. Weve added that this rapid re-think needs to include Ontarios critical care triage protocol and plans.
2. In the Legislatures Question Period this week, the Ford Government offered the public evasions and contradictions on this issue.
On Tuesday, April 20, 2021, Health Minister Christine Elliott made a statement that many understood as denying that there even is an Ontario critical care triage protocol. She stated:
I think one thing is really important, Speaker, and I would say to the member opposite, through you, that the speaker is alleging that there is a triage protocol in place in Ontario. There is not; there is not.
This, of course, would contradict the January 13, 2021 Critical Care Triage Protocol, which has been posted on the AODA Alliance website for three months. It would contradict the January 23, 2021 online webinar provided by Critical Care Services Ontario which tries to convince doctors to ready themselves to use that protocol if it becomes necessary. It would contradict the interview on the April 21, 2021 CBC Ottawa Morning radio program in which Dr. James Downar, the author or co-author of that protocol, defended it.
On Twitter, a number of members of the public angrily denounced the Ministers statement. The next day, April 21, 2021, Health Minister Christine Elliott acknowledged that there is a critical care triage protocol, but said it has not yet gone into operation. She stated:
I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.
There have been discussions. 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.
3. The Health Minister said that there were objections from disability groups to an earlier draft of the critical care triage protocol. That is true. However, we have repeatedly made public that we also object to the most recent version of it, the one issued to hospitals dated January 13, 2021.
4. Also in the Legislature, the Ford Government refused to answer a clear, simple and direct question on what instructions regarding critical care triage have been given to ambulance crews. In Question Period on April 21, 2021, MPP Joel Harden asked Health Minister Elliott:
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?
The Ministers response did not answer this important question. The AODA Alliance asked the Health Minister the same thing two months ago in our February 25, 2021 letter to her. The Government has never answered that question or that letter.
In Health Minister Elliotts April 21, 2021 answer in Question Period, an impression may be created that the Government has been consulting on the critical care triage protocol. No one has consulted us on the January 13, 2021 Critical Care Triage Protocol.
5. In its defence, the Ford Government said it is now reaching out to others outside Ontario, to see if they can bring more doctors, nurses and other needed health professionals to help out in Ontarios intensive care units. This is a much-needed measure. It could avert the need for any critical care triage.
However, we must ask why the Ford Government was not doing this weeks and months ago, when it was given ample early warning that Ontario was at risk of critical care overload. Had it done so, we would not be facing the imminent danger we now are confronting. The Ford Government could have had in place detailed emergency plans to shuttle health care professionals to Ontario, with prior clearances from the relevant licensing bodies so they can work here in this emergency. This further illustrates Ontarios failure to properly prepare.
For more information on these issues, visit the AODA Alliance websites health care page. MORE DETAILS

Ontario Hansard April 20, 2021
Question Period
COVID-19 RESPONSE
Ms. Sara Singh:My question is for the Premier. For months, experts including members of the Premiers own science table have been sounding the alarm about dangerously high ICU levels, and today we learned that there are over 760 people fighting for their lives in Ontario ICUs, Speaker.

But the Premier failed to act. They failed to implement paid sick days. They failed to vaccinate workers in hot spots, and now ICUs in communities like Brampton are overflowing. Pediatric hospitals are sacrificing their beds. Patients are being transferred to hospitals around the province outside of their communities, and doctors and nurses are being put in the horrific position of having to make decisions on who will receive life-saving supports and who will not.
Speaker, whywith all of the evidence in front of this government; all of the warnings from their own science tables and medical expertsdoes this government continue to ignore the crisis in our ICUs? The Speaker (Hon. Ted Arnott):Minister of Health.
Hon. Christine Elliott:We have been listening to the experts all along. We have been listening to their evidence. I think one thing is really important, Speaker, and I would say to the member opposite, through you, that the speaker is alleging that there is a triage protocol in place in Ontario. There is not; there is not.
What we are doing is building capacity in our hospitals. We are making sure there are two aspects to what we need to deal with here. We need to blunt the transmission of COVID-19 in communities, as well as, right now, we need to build capacity in our hospitals, which are we are doing.
We are in contact with the CEOs of the hospitals on virtually a daily basis. They are working very hard to create spaces.
We are creating capacity so that everyone in Ontario who needs to be admitted to hospital and needs to be in an intensive care bed will have a bed available for them.

The Speaker (Hon. Ted Arnott):Supplementary?
Ms. Sara Singh:Mr. Speaker, with all due respect to the Minister of Health, that response shows us how out of touch with reality this minister is. Doctors are sounding the alarm bells and this government continues to ignore their pleas for help. The government is following a pattern of denying the problem and acting too late.
Now the government is begging other provinces for help, but refusing the federal governments assistance and the assistance of the Red Cross. Speaker, health care systems in other provinces are also fighting COVID-19. They need their health care workers just as much as we do. It was this Premiers responsibility and this Minister of Healths responsibility to help protect people here in Ontario, and they failed to do that at every step of the pandemic.
This is a national and global failure and it is upsetting and heartbreaking to know that they could have acted and they chose not to. With months to plan for this crisis, why did this Premier fail to address the issues causing ICU capacity to rise, and why does the government think its another governments responsibility to come and clean up their mess? Interjections.
The Speaker (Hon. Ted Arnott):Ill ask members to please take their seats and allow the Minister of Health to reply.
Hon. Christine Elliott:Again, through you, Mr. Speaker, I would say to the member opposite that what youre suggesting is simply not the case. Since the beginning of this pandemic, we have been working hard to make sure that we have both the health human resources Ms. Sara Singh:Why are people dying?
Hon. Christine Elliott:and the physical capacity in order to deal with whats been happening. We have created Interjection.
Hon. Christine Elliott:I dont know if the member opposite really wants to hear me, shes
The Speaker (Hon. Ted Arnott):Im going to ask the Minister of Health to take her seat. Interjections.
The Speaker (Hon. Ted Arnott):Im going to ask the member for Brampton Centre to come to order. Im going to ask the government House leader to come to order. Interjection.
The Speaker (Hon. Ted Arnott):Always innocent.
Im going to recognize the Minister of Health to conclude her response.
Hon. Christine Elliott:Thank you, Speaker. To continue, since the beginning of this pandemic, we have created over 3,100 new hospital beds, which is the equivalent of six new community hospitals. We have also added 14% to intensive care capacity, which is significant in the context of this pandemic.
We have also added resources in order to be able to deal with the health human resources that we need. We have allowed for the deployment of people from one sector to another.
Finally, I would say with respect to whats happening with other provinces and other organizations coming in to help us, were very grateful for the help thats being offered by the other provinces and were very grateful to the federal government for their offer of assistance from the Red Cross as well. We know that we need help right now. We have the physical capacity. We need some more health human resources and we are using those resources to make sure everyone who needs help will get help in our hospitals. Ontario Hansard April 21, 2021
Question Period
COVID-19 RESPONSE
Mr. Joel Harden:My question is to the Minister of Health. As many people have already raised this morning, our ICUs are near the breaking point. Were getting close to 100 patients now being treated in our ICUs, but despite this fact, the government has refused to make public its plans for critical care triage in those ICUs. We dont know. People with disabilities and their loved ones and advocacy organizations still dont know what has been negotiated in secret and what actually will happen when those life-and-death decisions take place but, at home, Dr. David Neilipovitz, the ICU director at the Ottawa Hospital told CBC News, It would be naïve for us to think that triage or changes in the standard of care have not already come about. Lets think about that.
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? The Speaker (Hon. Ted Arnott):Minister of health.
Hon. Christine Elliott:I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.
There have been discussions. 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.
What we are doing instead is to create the capacity so that we can care for all the patients that come into our hospital, whether theyre COVID patients or emergency patients that come in otherwise. We have created over 3,100 beds since this pandemic began, increased our intensive care capacity by 14%.
We are looking at bringing in other health professionals from other provinces and other countries so that, notwithstanding having the creation of those spaces, we will also have the health human resources in order to be able to operate them safely, carefully and professionally. The Speaker (Hon. Ted Arnott):The supplementary question.
Mr. Joel Harden:Earlier today, I was joined by disability rights leaders for a media conference, all of whom are calling upon this government to make public its plans for critical care triage. Speaker, I know this minister served as Patient Ombudsperson for this province for years and knows full well that every patient, physiotypical, neurotypical or not, has a right to their care at the point of service. But the minister also should know that hospitals got a critical triage protocol on January 13, that a training has been conducted. So I must admit my extreme frustration that today, when our ICUs are nearing capacity, we are still hearing, There are no plans.
Speaker, let me say very clearly for this House, I didnt know, at this point: not an acceptable answer. I was just following orders, at this point: not an acceptable answer. Please forgive me to disabled patients and their loved ones: not an acceptable answer.
Will you make sure that people with disabilities are not discriminated against in the ICUs: yes or no?
The Speaker (Hon. Ted Arnott):Again, Ill ask the members to make their comments through the Chair. The Minister of Health to respond.
Hon. Christine Elliott:The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago, and I dont need to take any instructions from anybody Ms. Andrea Horwath:Ha!
Hon. Christine Elliott:including the leader of the official opposition, about this issue. I have always stood up for the rights of people with disabilities Interjections.
The Speaker (Hon. Ted Arnott):Order. Opposition, come to order. The member for NorthumberlandPeterborough South, come to order. The Minister of Health, please reply.

Hon. Christine Elliott:The rights of people with disabilities have been one of the issues that we have cared about and dealt with as part of this entire pandemic. The rights of people with disabilities are equally as important as the rights of anybody else. That is something that Ive always stood by, that
I always will stand by. I can assure the member opposite that no triage protocol has been approved. A draft was circulated in January. That was not approved by this government. It was something that had been discussed. But I understand that the rights of people with disabilities have been brought forward. I asked them Interjections.
The Speaker (Hon. Ted Arnott):The member for Ottawa Centre, come to order. The member for Hamilton WestAncasterDundas, come to order. The minister, please conclude her response.
Hon. Christine Elliott:I asked that this issue be dealt with, with the people with disabilities groups, as well as with the Ontario Human Rights Commission. There have been numerous discussions, but nothing has been activated yet, and I can assure you nothing has been approved at this point. We are working to make sure The Speaker (Hon. Ted Arnott):Thank you. The next question.

QP Briefing April 21, 2021

Originally posted at https://www.qpbriefing.com/2021/04/21/solicitor-general-brushes-off-disability-advocate-concerns-about-triage-protocol/ SOLICITOR GENERAL BRUSHES OFF DISABILITY ADVOCATE CONCERNS ABOUT TRIAGE PROTOCOL
Home Health And COVID-19 Solicitor General Brushes Off Disability Advocate Concerns About Triage Protocol Solicitor general brushes off disability advocate concerns about triage protocol
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.’ Lets 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 dont 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.

Ottawa Citizen Online April 22, 2021

Originally posted at https://ottawacitizen.com/opinion/harden-ontarios-covid-triage-protocol-must-respect-rights-of-the-disabled Opinion Columnists

Harden: Ontarios COVID triage protocol must respect rights of the disabled

Just over a year ago, 200+ community organizations urged the Ford government to remove disability discrimination from the triage guidance. The response so far: silence.

Joel Harden

The Children’s Hospital of Eastern Ontario is accepting adult critical care patients due to the growing severity of the COVID-19 crisis. PHOTO BY ERROL MCGIHON /Errol McGihon
These are perilous times in Ontario. On April 16, 2021, a record-breaking 4,812 new COVID-19 cases were recorded.

At the moment, more than 750 patients are being treated in Ontarios ICUs. For the first time in its 47-year history, the Childrens Hospital of Eastern Ontario is accepting adult COVID-19 patients who require critical care.

There is a real possibility that by the end of the month, hospitals will have to ration or triage critical care due to surging COVID case counts. Triage refers to how hospitals will decide who gets life-saving care if ICUs are overwhelmed with COVID patients and they run out of beds.

Along with disability and human rights leaders, I am deeply concerned that the Doug Ford governments current clinical triage protocol includes disability discrimination, and hasnt been developed with adequate consultation.

Whats wrong with the triage protocol that was circulated to hospitals on Jan. 13, 2021? Firstly, it includes a clinical frailty scale, meaning that a patient over the age of 65 with a progressive disease (Alzheimers, Muscular Dystrophy etc.) will be evaluated based on how they can perform 11 different activities of daily living without assistance. This is blatantly discriminatory against people with disabilities, millions of whom require varying degrees of assistance to live their fullest lives.

Secondly, it includes criteria that assess the patients likelihood of mortality one year from their admission to hospital. Even ICU doctors have conceded that such assessments are guesstimates rather than an exact science. This leaves the door open to subjective judgments about a persons quality of life that could discriminate against people with disabilities, as opposed to a shorter-term assessment of mortality.

No one is suggesting that Ontario shouldnt have a triage protocol in place if ICUs are filled to maximum capacity. What we are saying is that the protocol must respect human rights and the rule of law. It also needs to be discussed openly and transparently, but this government has taken the opposite approach.

Members of the governments own bioethics table have criticized the secrecy with which the government has been handling its approach to clinical triage. Noting that the process must be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims, they believe that Ontario has failed to meet these requirements.

News media have also reported that the Ford government is considering suspending parts of the Health Care Consent Act (HCCA), which requires doctors to obtain consent from a patient or their substitute decision maker before they withdraw critical care.

It is unacceptable for the government to make life-and-death decisions by a secret memo. If they are considering suspending the HCCA, they must make the details public and have a proper debate in the legislature.

Just over a year ago, 200+ community organizations wrote to the Ford government urging it to remove disability discrimination from the provinces triage protocol. For more than a year, the government has been aware of these concerns and had ample time to consult with disability and human rights leaders in developing its clinical triage protocol.

How has the Ford government responded? With complete silence. It has ignored direct appeals from disability groups, the Ontario Human Rights Commission and the opposition, all of whom have expressed concerns with the Jan. 13 emergency standard of care triage protocol.

What message does this send to the 2.6 million people with disabilities who live in Ontario? People with disabilities are more likely to get COVID-19, and to be seriously impacted by the virus. This government must assure them that they wont face any discrimination in the awful event that triage becomes necessary.

Its time to stop the secrecy surrounding critical care triage. Its time for the Ford government to remove disability discrimination from its clinical triage protocol.

Joel Harden is the NDP MPP for Ottawa Centre and opposition critic, accessibility and persons with disabilities.

New Democratic Party April 21, 2021 News Release

NDP MPP Joel Harden, disability rights advocates call on Ford to remove disability discrimination from triage protocol
QUEENS PARK MPP Joel Harden (Ottawa Centre), the NDPs critic for Accessibility and Persons with Disabilities, called on the Ford government to withdraw disability discrimination from Ontarios clinical triage protocol and immediately hold a public consultation on how care will be triaged if ICUs become too overwhelmed to fully treat everyone.
Harden was joined at a Wednesday morning press conference by David Lepofsky, Chair of the AODA Alliance, Sarah Jama, Co-founder of the Disability Justice Network of Ontario, and Mariam Shanouda, Staff Lawyer at ARCH Disability Law Centre, all of whom are expressing deep concerns about the protocol and the secrecy surrounding it.
We should never have gotten to the point where critical care triage became a possibility, but the Ford governments choice to put money and politics ahead of public health has brought ICUs to the breaking point, said Harden. The government must remove disability discrimination from its triage protocol, and assure people with disabilities that they wont be deprioritized for life-saving critical care.
The Ford government continues to ignore human rights concerns raised by disability rights leaders, and the Ontario Human Rights Commission about its approach to clinical triage. They have not held open consultations, and it was disability organizations and the opposition, not the government, that made public the January 13, 2021 triage protocol which was sent to hospitals.
This entire process has been cloaked in secrecy, said Harden. Thats wrong, and its time for the government to stop making life-and-death decisions behind closed doors. Quotes:
David Lepofsky, Chair, AODA Alliance
“Our non-partisan grassroots coalition agrees that Ontario must be prepared for the possibility of critical care triage, but Ontarios plan must include a triage protocol, mandated by the Legislature, that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities or denying them due process. They have already disproportionately suffered the hardships of the COVID-19 pandemic.

Sarah Jama, Co-founder, Disability Justice Network of Ontario
We are in a time of deep crisis, and need to offer paid sick days and increase social assistance rates for community members without work from home jobs, or a safety net. But rather than make these preventative policy decisions, our government has created conditions where doctors must rank who gets to live and who gets to die.

Mariam Shanouda, Staff Lawyer, ARCH Disability Law Centre
“Health care, including critical care during a pandemic, must be available free from unlawful discrimination. This is a life and death non-partisan issue. The choice must not be whether we have no triage plan or one that discriminates. And lets be clear, the current plan is discriminatory and will disproportionately impact persons with disabilities who have already disproportionately experienced devastating consequences from this pandemic.”




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As The Ford Government Back-Pedals and Scrambles to Re-Invent Its Response to the COVID-19 Crisis, Will It Make Public and Fix Its Disability-Discriminatory Critical Care Triage Plans?


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/

As The Ford Government Back-Pedals and Scrambles to Re-Invent Its Response to the COVID-19 Crisis, Will It Make Public and Fix Its Disability-Discriminatory Critical Care Triage Plans?

April 22, 2021

            SUMMARY

The Ford Government appears shell-shocked, as it flip-flops, back-tracks and scrambles to respond to the imminent threat that Ontario will run out of space and staff to deliver life-saving critical care to all patients who need it.

Here are yet more recent developments in the non-partisan campaign to try to ensure that people with disabilities will not face disability discrimination in access to life-saving critical care, if that care is rationed or “triaged.” Regrettably, the Government has shown no willingness to lift the fog of secrecy over its critical care triage plans, to talk directly to disability advocates and organizations about it, or to fix the serious problems with its critical care triage protocol and plans.

1. The Latest Developments in a Nutshell

  1. On Tuesday night, April 20, 2021, a very successful online virtual public forum was held to discuss the critical care triage issue as it affects people with disabilities. Key speakers were AODA Alliance Chair David Lepofsky and ARCH Disability Law Centre Executive Director Robert Lattanzio. We are thrilled that an impressive 280 people took part. They got action tips on how to help with our fight against the danger of disability discrimination in critical care triage, if triage takes place.

We all wish there was more time to take all the questions that so many wanted to ask. A huge thank you goes to all who helped organize this event, and all who took the time to attend it.

  1. The disability objections to Ontario’s controversial critical care triage protocol and plans were raised on Tuesday, April 20 and Wednesday April 21, 2021 in the Ontario Legislature’s Question Period. Below, you can read these exchanges and our reflections on them.
  1. On Wednesday, April 21, 2022, Ontario New Democratic Party disabilities critic Joel Harden held a virtual Queen’s Park news conference, focusing on disability objections to Ontario’s critical care triage protocol and plans. The speakers that MPP Harden invited to make remarks included AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre legal counsel Mariam Shanouda, and Disability Justice Network of Ontario co-founder Sarah Jama. The AODA Alliance appreciated the opportunity to contribute to this event. As a non-partisan coalition, we take part in news conferences convened by any of the political parties to which we are invited, where the event provides a helpful platform to raise our issues.

Arising out of this well-attended news conference, the NDP issued a news release on April 21, 2022, set out below. It includes a quotation from AODA Alliance Chair David Lepofsky setting out our position. It includes quotations from the other speakers as well.

  1. The influential publication QP Briefing ran a strong article on April 21, 2021, arising from that day’s news conference. We set it out below.
  2. The April 22, 2021 online edition of the Ottawa Citizen includes a guest column on the triage issue by NDP disabilities critic Joel Harden. We also provide it for you in this Update.

2. Yet More Reflections on Ongoing Ford Government Failure to Respond to Our Disability Concerns with Its Critical Care Triage Protocol and Plans

  1. We have gotten more and more feedback from people with disabilities about the critical care triage disability objections. We keep hearing that people are frightened and angry. As if the COVID-19 pandemic was not bad enough, this issue makes them feel even more vulnerable and at risk.

At the same time, the message we all hear from the public around Ontario over the past six days has been louder than ever: The Ford Government’s response to the COVID-19 pandemic needs a major re-think, and fast. We’ve added that this rapid re-think needs to include Ontario’s critical care triage protocol and plans.

  1. In the Legislature’s Question Period this week, the Ford Government offered the public evasions and contradictions on this issue.

On Tuesday, April 20, 2021, Health Minister Christine Elliott made a statement that many understood as denying that there even is an Ontario critical care triage protocol.  She stated:

“I think one thing is really important, Speaker, and I would say to the member opposite, through you, that the speaker is alleging that there is a triage protocol in place in Ontario. There is not; there is not.”

This, of course, would contradict the January 13, 2021 Critical Care Triage Protocol, which has been posted on the AODA Alliance website for three months. It would contradict the January 23, 2021 online webinar provided by Critical Care Services Ontario which tries to convince doctors to ready themselves to use that protocol if it becomes necessary. It would contradict the interview on the April 21, 2021 CBC Ottawa Morning radio program in which Dr. James Downar, the author or co-author of that protocol, defended it.

On Twitter, a number of members of the public angrily denounced the Minister’s statement. The next day, April 21, 2021, Health Minister Christine Elliott acknowledged that there is a critical care triage protocol, but said it has not yet gone into operation. She stated:

“I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.

There have been discussions. 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.”

  1. The Health Minister said that there were objections from disability groups to an earlier draft of the critical care triage protocol. That is true. However, we have repeatedly made public that we also object to the most recent version of it, the one issued to hospitals dated January 13, 2021.
  2. Also in the Legislature, the Ford Government refused to answer a clear, simple and direct question on what instructions regarding critical care triage have been given to ambulance crews. In Question Period on April 21, 2021, MPP Joel Harden asked Health Minister Elliott:

“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?”

The Minister’s response did not answer this important question. The AODA Alliance asked the Health Minister the same thing two months ago in our February 25, 2021 letter to her. The Government has never answered that question or that letter.

In Health Minister Elliott’s April 21, 2021 answer in Question Period, an impression may be created that the Government has been consulting on the critical care triage protocol. No one has consulted us on the January 13, 2021 Critical Care Triage Protocol.

  1. In its defence, the Ford Government said it is now reaching out to others outside Ontario, to see if they can bring more doctors, nurses and other needed health professionals to help out in Ontario’s intensive care units. This is a much-needed measure. It could avert the need for any critical care triage.

However, we must ask why the Ford Government was not doing this weeks and months ago, when it was given ample early warning that Ontario was at risk of critical care overload. Had it done so, we would not be facing the imminent danger we now are confronting. The Ford Government could have had in place detailed emergency plans to shuttle health care professionals to Ontario, with prior clearances from the relevant licensing bodies so they can work here in this emergency. This further illustrates Ontario’s failure to properly prepare.

For more information on these issues, visit the AODA Alliance website’s health care page.

            MORE DETAILS

Ontario Hansard April 20, 2021

Question Period

COVID-19 RESPONSE

Ms. Sara Singh: My question is for the Premier. For months, experts including members of the Premier’s own science table have been sounding the alarm about dangerously high ICU levels, and today we learned that there are over 760 people fighting for their lives in Ontario ICUs, Speaker.

But the Premier failed to act. They failed to implement paid sick days. They failed to vaccinate workers in hot spots, and now ICUs in communities like Brampton are overflowing. Pediatric hospitals are sacrificing their beds. Patients are being transferred to hospitals around the province outside of their communities, and doctors and nurses are being put in the horrific position of having to make decisions on who will receive life-saving supports and who will not.

Speaker, why—with all of the evidence in front of this government; all of the warnings from their own science tables and medical experts—does this government continue to ignore the crisis in our ICUs?

The Speaker (Hon. Ted Arnott): Minister of Health.

Hon. Christine Elliott: We have been listening to the experts all along. We have been listening to their evidence. I think one thing is really important, Speaker, and I would say to the member opposite, through you, that the speaker is alleging that there is a triage protocol in place in Ontario. There is not; there is not.

What we are doing is building capacity in our hospitals. We are making sure there are two aspects to what we need to deal with here. We need to blunt the transmission of COVID-19 in communities, as well as, right now, we need to build capacity in our hospitals, which are we are doing.

We are in contact with the CEOs of the hospitals on virtually a daily basis. They are working very hard to create spaces.

We are creating capacity so that everyone in Ontario who needs to be admitted to hospital and needs to be in an intensive care bed will have a bed available for them.

The Speaker (Hon. Ted Arnott): Supplementary?

Ms. Sara Singh: Mr. Speaker, with all due respect to the Minister of Health, that response shows us how out of touch with reality this minister is. Doctors are sounding the alarm bells and this government continues to ignore their pleas for help. The government is following a pattern of denying the problem and acting too late.

Now the government is begging other provinces for help, but refusing the federal government’s assistance and the assistance of the Red Cross. Speaker, health care systems in other provinces are also fighting COVID-19. They need their health care workers just as much as we do. It was this Premier’s responsibility and this Minister of Health’s responsibility to help protect people here in Ontario, and they failed to do that at every step of the pandemic.

This is a national and global failure and it is upsetting and heartbreaking to know that they could have acted and they chose not to. With months to plan for this crisis, why did this Premier fail to address the issues causing ICU capacity to rise, and why does the government think it’s another government’s responsibility to come and clean up their mess?

Interjections.

The Speaker (Hon. Ted Arnott): I’ll ask members to please take their seats and allow the Minister of Health to reply.

Hon. Christine Elliott: Again, through you, Mr. Speaker, I would say to the member opposite that what you’re suggesting is simply not the case. Since the beginning of this pandemic, we have been working hard to make sure that we have both the health human resources—

Ms. Sara Singh: Why are people dying?

Hon. Christine Elliott: —and the physical capacity in order to deal with what’s been happening. We have created—

Interjection.

Hon. Christine Elliott: I don’t know if the member opposite really wants to hear me, she’s—

The Speaker (Hon. Ted Arnott): I’m going to ask the Minister of Health to take her seat.

Interjections.

The Speaker (Hon. Ted Arnott): I’m going to ask the member for Brampton Centre to come to order. I’m going to ask the government House leader to come to order.

Interjection.

The Speaker (Hon. Ted Arnott): Always innocent.

I’m going to recognize the Minister of Health to conclude her response.

Hon. Christine Elliott: Thank you, Speaker. To continue, since the beginning of this pandemic, we have created over 3,100 new hospital beds, which is the equivalent of six new community hospitals. We have also added 14% to intensive care capacity, which is significant in the context of this pandemic.

We have also added resources in order to be able to deal with the health human resources that we need. We have allowed for the deployment of people from one sector to another.

Finally, I would say with respect to what’s happening with other provinces and other organizations coming in to help us, we’re very grateful for the help that’s being offered by the other provinces and we’re very grateful to the federal government for their offer of assistance from the Red Cross as well. We know that we need help right now. We have the physical capacity. We need some more health human resources and we are using those resources to make sure everyone who needs help will get help in our hospitals.

Ontario Hansard April 21, 2021

Question Period

COVID-19 RESPONSE

Mr. Joel Harden: My question is to the Minister of Health. As many people have already raised this morning, our ICUs are near the breaking point. We’re getting close to 100 patients now being treated in our ICUs, but despite this fact, the government has refused to make public its plans for critical care triage in those ICUs. We don’t know. People with disabilities and their loved ones and advocacy organizations still don’t know what has been negotiated in secret and what actually will happen when those life-and-death decisions take place but, at home, Dr. David Neilipovitz, the ICU director at the Ottawa Hospital told CBC News, “It would be naïve for us to think that triage or changes in the standard of care have not already come about.” Let’s think about that.

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?

The Speaker (Hon. Ted Arnott): Minister of health.

Hon. Christine Elliott: I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.

There have been discussions. 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.

What we are doing instead is to create the capacity so that we can care for all the patients that come into our hospital, whether they’re COVID patients or emergency patients that come in otherwise. We have created over 3,100 beds since this pandemic began, increased our intensive care capacity by 14%.

We are looking at bringing in other health professionals from other provinces and other countries so that, notwithstanding having the creation of those spaces, we will also have the health human resources in order to be able to operate them safely, carefully and professionally.

The Speaker (Hon. Ted Arnott): The supplementary question.

Mr. Joel Harden: Earlier today, I was joined by disability rights leaders for a media conference, all of whom are calling upon this government to make public its plans for critical care triage. Speaker, I know this minister served as Patient Ombudsperson for this province for years and knows full well that every patient, physiotypical, neurotypical or not, has a right to their care at the point of service. But the minister also should know that hospitals got a critical triage protocol on January 13, that a training has been conducted. So I must admit my extreme frustration that today, when our ICUs are nearing capacity, we are still hearing, “There are no plans.”

Speaker, let me say very clearly for this House, “I didn’t know,” at this point: not an acceptable answer. “I was just following orders,” at this point: not an acceptable answer. “Please forgive me” to disabled patients and their loved ones: not an acceptable answer.

Will you make sure that people with disabilities are not discriminated against in the ICUs: yes or no?

The Speaker (Hon. Ted Arnott): Again, I’ll ask the members to make their comments through the Chair. The Minister of Health to respond.

Hon. Christine Elliott: The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago, and I don’t need to take any instructions from anybody—

Ms. Andrea Horwath: Ha!

Hon. Christine Elliott: —including the leader of the official opposition, about this issue. I have always stood up for the rights of people with disabilities—

Interjections.

The Speaker (Hon. Ted Arnott): Order. Opposition, come to order. The member for Northumberland–Peterborough South, come to order.

The Minister of Health, please reply.

Hon. Christine Elliott: The rights of people with disabilities have been one of the issues that we have cared about and dealt with as part of this entire pandemic. The rights of people with disabilities are equally as important as the rights of anybody else. That is something that I’ve always stood by, that

I always will stand by. I can assure the member opposite that no triage protocol has been approved. A draft was circulated in January. That was not approved by this government. It was something that had been discussed. But I understand that the rights of people with disabilities have been brought forward. I asked them—

Interjections.

The Speaker (Hon. Ted Arnott): The member for Ottawa Centre, come to order. The member for Hamilton West–Ancaster–Dundas, come to order.

The minister, please conclude her response.

Hon. Christine Elliott: I asked that this issue be dealt with, with the people with disabilities groups, as well as with the Ontario Human Rights Commission. There have been numerous discussions, but nothing has been activated yet, and I can assure you nothing has been approved at this point. We are working to make sure—

The Speaker (Hon. Ted Arnott): Thank you. The next question.

QP Briefing April 21, 2021

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

SOLICITOR GENERAL BRUSHES OFF DISABILITY ADVOCATE CONCERNS ABOUT TRIAGE PROTOCOL

Home Health And COVID-19 Solicitor General Brushes Off Disability Advocate Concerns About Triage Protocol

Solicitor general brushes off disability advocate concerns about triage protocol

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.

Ottawa Citizen Online April 22, 2021

Originally posted at https://ottawacitizen.com/opinion/harden-ontarios-covid-triage-protocol-must-respect-rights-of-the-disabled

Opinion Columnists

Harden: Ontario’s COVID triage protocol must respect rights of the disabled

Just over a year ago, 200+ community organizations urged the Ford government to remove disability discrimination from the triage guidance. The response so far: silence.

Joel Harden

The Children’s Hospital of Eastern Ontario is accepting adult critical care patients due to the growing severity of the COVID-19 crisis. PHOTO BY ERROL MCGIHON /Errol McGihon

These are perilous times in Ontario. On April 16, 2021, a record-breaking 4,812 new COVID-19 cases were recorded.

At the moment, more than 750 patients are being treated in Ontario’s ICUs. For the first time in its 47-year history, the Children’s Hospital of Eastern Ontario is accepting adult COVID-19 patients who require critical care.

There is a real possibility that by the end of the month, hospitals will have to ration or “triage” critical care due to surging COVID case counts. Triage refers to how hospitals will decide who gets life-saving care if ICUs are overwhelmed with COVID patients and they run out of beds.

Along with disability and human rights leaders, I am deeply concerned that the Doug Ford government’s current clinical triage protocol includes disability discrimination, and hasn’t been developed with adequate consultation.

What’s wrong with the triage protocol that was circulated to hospitals on Jan. 13, 2021? Firstly, it includes a “clinical frailty scale,” meaning that a patient over the age of 65 with a progressive disease (Alzheimers, Muscular Dystrophy etc.) will be evaluated based on how they can perform 11 different activities of daily living without assistance. This is blatantly discriminatory against people with disabilities, millions of whom require varying degrees of assistance to live their fullest lives.

Secondly, it includes criteria that assess the patient’s likelihood of mortality one year from their admission to hospital. Even ICU doctors have conceded that such assessments are “guesstimates” rather than an exact science. This leaves the door open to subjective judgments about a person’s quality of life that could discriminate against people with disabilities, as opposed to a shorter-term assessment of mortality.

No one is suggesting that Ontario shouldn’t have a triage protocol in place if ICUs are filled to maximum capacity. What we are saying is that the protocol must respect human rights and the rule of law. It also needs to be discussed openly and transparently, but this government has taken the opposite approach.

Members of the government’s own bioethics table have criticized the secrecy with which the government has been handling its approach to clinical triage. Noting that the process must be “informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims,” they believe that Ontario has failed to meet these requirements.

News media have also reported that the Ford government is considering suspending parts of the Health Care Consent Act (HCCA), which requires doctors to obtain consent from a patient or their substitute decision maker before they withdraw critical care.

It is unacceptable for the government to make life-and-death decisions by a secret memo. If they are considering suspending the HCCA, they must make the details public and have a proper debate in the legislature.

Just over a year ago, 200+ community organizations wrote to the Ford government urging it to remove disability discrimination from the province’s triage protocol. For more than a year, the government has been aware of these concerns and had ample time to consult with disability and human rights leaders in developing its clinical triage protocol.

How has the Ford government responded? With complete silence. It has ignored direct appeals from disability groups, the Ontario Human Rights Commission and the opposition, all of whom have expressed concerns with the Jan. 13 “emergency standard of care” triage protocol.

What message does this send to the 2.6 million people with disabilities who live in Ontario? People with disabilities are more likely to get COVID-19, and to be seriously impacted by the virus. This government must assure them that they won’t face any discrimination in the awful event that triage becomes necessary.

It’s time to stop the secrecy surrounding critical care triage. It’s time for the Ford government to remove disability discrimination from its clinical triage protocol.

Joel Harden is the NDP MPP for Ottawa Centre and opposition critic, accessibility and persons with disabilities.

New Democratic Party April 21, 2021 News Release

NDP MPP Joel Harden, disability rights advocates call on Ford to remove disability discrimination from triage protocol

QUEENS PARK — MPP Joel Harden (Ottawa Centre), the NDP’s critic for Accessibility and Persons with Disabilities, called on the Ford government to withdraw disability discrimination from Ontario’s clinical triage protocol and immediately hold a public consultation on how care will be triaged if ICUs become too overwhelmed to fully treat everyone.

Harden was joined at a Wednesday morning press conference by David Lepofsky, Chair of the AODA Alliance, Sarah Jama, Co-founder of the Disability Justice Network of Ontario, and Mariam Shanouda, Staff Lawyer at ARCH Disability Law Centre, all of whom are expressing deep concerns about the protocol and the secrecy surrounding it.

“We should never have gotten to the point where critical care triage became a possibility, but the Ford government’s choice to put money and politics ahead of public health has brought ICUs to the breaking point,” said Harden. “The government must remove disability discrimination from its triage protocol, and assure people with disabilities that they won’t be deprioritized for life-saving critical care.”

The Ford government continues to ignore human rights concerns raised by disability rights leaders, and the Ontario Human Rights Commission about its approach to clinical triage. They have not held open consultations, and it was disability organizations and the opposition, not the government, that made public the January 13, 2021 triage protocol which was sent to hospitals.

“This entire process has been cloaked in secrecy,” said Harden. “That’s wrong, and it’s time for the government to stop making life-and-death decisions behind closed doors.”

Quotes:

David Lepofsky, Chair, AODA Alliance
“Our non-partisan grassroots coalition agrees that Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a triage protocol, mandated by the Legislature, that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities or denying them due process. They have already disproportionately suffered the hardships of the COVID-19 pandemic.”

 

Sarah Jama, Co-founder, Disability Justice Network of Ontario
“We are in a time of deep crisis, and need to offer paid sick days and increase social assistance rates for community members without work from home jobs, or a safety net. But rather than make these preventative policy decisions, our government has created conditions where doctors must rank who gets to live and who gets to die.”

 

Mariam Shanouda, Staff Lawyer, ARCH Disability Law Centre
“Health care, including critical care during a pandemic, must be available free from unlawful discrimination. This is a life and death non-partisan issue. The choice must not be whether we have no triage plan or one that discriminates. And let’s be clear, the current plan is discriminatory and will disproportionately impact persons with disabilities who have already disproportionately experienced devastating consequences from this pandemic.”



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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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As COVID-19 Infections Hit Record Highs and Hospital ICUs Reach the Brink, Six Bioethicists on The Ford Government’s Bioethics Table Release a Public Statement Revealing Major Concerns with Ontario’s Plans for Triage of Critical Care, that Echo Disability Community Objections


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

As COVID-19 Infections Hit Record Highs and Hospital ICUs Reach the Brink, Six Bioethicists on The Ford Government’s Bioethics Table Release a Public Statement Revealing Major Concerns with Ontario’s Plans for Triage of Critical Care, that Echo Disability Community Objections

April 15, 2021 Toronto: A body blow has just been delivered to the Ford Government’s controversial plans for deciding which patients would be refused life-saving critical care, if the crisis overload in Ontario hospital intensive care units requires that life-saving critical care must be rationed or “triaged”. Six members of the Ford Government’s own advisory “Bioethics Table” have today published an online statement, set out below, that strongly criticizes Ontario’s critical care triage plans. Their concerns reflect serious objections to Ontario’s triage plans from the disability community, including from the AODA Alliance.

The six bioethicists (who don’t claim to speak for the entire Bioethics Table) urge that the Government should now reveal its secret critical care triage plans to the public, should consult the public, and should hold and open discussion of how critical care should be triaged, if rationing becomes necessary, without treating this as a purely clinical issue or one for bioethicists to monopolize. (Key excerpts also set out below)

These six authors make it clear that Ontario needs a better approach to critical care triage. This is a direct blast at the Ford Government’s persistent secrecy on this issue and its refusal to speak directly to key stakeholders like those from the disability community. We offer the example that the Government has refused to even answer eight detailed letters from the AODA Alliance since last September which identify well-researched objections.

The six bioethicists explain that decisions over who should get life-saving critical care and who should be refused it during critical care triage is not simply a clinical question (i.e. one of medical science alone). Ontario’s secret critical care triage protocol treats this triage as purely a clinical question. The six authors humbly emphasize that bioethicists themselves have no monopoly on wisdom in the area of how critical care triage should be conducted.

These authors urge that it is important to respect the human rights of disadvantaged groups in society. We add that the AODA Alliance and others have been showing for months that Ontario’s plans are replete with disability discrimination, contrary to the Ontario Human Rights Code.

We expect that the Ford Government will answer that the Bioethics Table, of whom these six authors are a part, held consultations with a number of disability advocates, including the AODA Alliance. That would be no answer. Those discussions ended months ago. The external Bioethics Table only gives advice to The Government. The Bioethics Table makes no decisions on how critical care triage should be conducted, and rejected some of our major concerns without giving reasons for doing so. Those in the Government who do make the decisions have steadfastly refused to talk to us. The Government has hidden behind them for months, like human shields.

The secret January 13, 2021 Critical Care Triage Protocol is not available on any Government website, but is available on the AODA Alliance website.

In light of this important statement by several of The Government’s own external advisors, the AODA Alliance calls on the Ford Government to take these four urgent steps:

  1. Now make public the current version of the critical care triage protocol, all reports and recommendations by its external Bioethics Table since September 11, 2021, The Government’s plan of action for rolling out critical care triage if needed, and the results of drills or simulations of critical care triage held at any Ontario hospitals.
  2. Remove disability discrimination from the January 13, 2021 Critical Care Triage Protocol, and
  3. Immediately hold a public consultation on how critical care triage should be conducted.
  4. Introduce legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

Key statements to this effect by the six bioethicists on the Ford Government’s external Bioethics Table in this article include:

“As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under.”

“We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources – especially to the people most likely to be impacted by intensive care triage decisions – as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.”

“Science alone cannot tell us how to allocate ICU beds.”

“Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage”

“Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.”

“It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

“We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic.”

“The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.”

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

For More Background

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.
  2. Ontario’s January 13, 2021 triage protocol.
  3. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  5. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

Healthy Debate April 15, 2021

Originally posted at https://healthydebate.ca/opinions/icu-triage/?utm_source=mailpoet&utm_medium=email&utm_campaign=we-need-to-talk-about-triaging-critical-care_12

Opinion

Public conversation on the ethics of intensive care triage during pandemic is overdue

by Alison Thompson, Paula Chidwick, Lisa Jennifer Schwartz, Stephanie Nixon, Lisa Forman, Robert Sibbald

COVID-19 has highlighted the ethical challenges in our health-care system, and nowhere is this more apparent than in an overcrowded intensive care unit. ICUs are where the sickest of the sick receive life-saving treatments and where their crashing bodily functions are taken over by high-tech machines.

Even when there isn’t a pandemic, not everyone can get access to intensive care, and not everyone will benefit from it. It is costly, invasive and requires a highly skilled workforce to make it run.

In the early days of the COVID-19 pandemic, people around the world were shocked by the images of ICU doctors working around the clock in Wuhan, Turin and New York. Their faces were etched with bruises from their tight-fitting face masks. Their eyes were haunted by the sheer number of patients they were treating – and by the sheer number they couldn’t treat.

These early warnings from other countries signaled that Canadian provinces needed to avoid a major surge of patients that would strain intensive care resources. But, preparing for the worst, work on guidance for intensive care triage began very early on in the pandemic, with Saskatchewan and Quebec starting in late winter 2020 and Ontario in the spring of 2020 across several of its COVID-19 advisory tables.

As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under. To be clear, we do not speak on behalf of the COVID-19 Bioethics Table, but we do speak as scholars in clinical and public health ethics and in human rights law who are also members of that Table.

We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources – especially to the people most likely to be impacted by intensive care triage decisions – as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.

Rationing intensive care beds is fundamentally an ethical endeavour

Science alone cannot tell us how to allocate ICU beds. Should they go to the sickest patients? Should they go to those who are most likely to benefit from treatment? Should we use a lottery system? Should we withdraw treatment from patients if they are not going to have a meaningful recovery to give the bed to someone who will? And what constitutes a meaningful recovery? These are ethical questions requiring value judgements.

Many pandemic response plans focus on maximizing the benefit of scarce resources to save the most lives. Allocating ICU beds to people who are unlikely to benefit from them is often considered unethical and inefficient. Clinicians who work in the ICU often talk about the moral difficulty of providing treatments that sometimes do more harm than good. The moral burden of care in these circumstances weighs heavily on ICU clinicians when left to make these decisions alone and without ethical guidance.

How should health equity be balanced with utility in intensive care triage?

Society’s failure to address upstream causes of ill health and inequities means that the futility or efficacy of ICU care is often determined well before people are brought to the doors of an ICU. To fail to attend to this in triage frameworks and clinical protocols undermines trust. Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage

Consensus on a proposed ethical framework for pandemic triage, even just among bioethicists, is unrealistic. Nor is it necessarily desirable. In fact, the role of dissensus in bioethics is crucial to avoiding the narrowing of possible policy avenues and avoiding presumptive constructions of various stakeholders.

As bioethicists, our expertise is in sketching the moral landscape, providing options and framing ethical debate. Our job is to propose a possible approach to intensive care triage that the public and stakeholders can then weigh and deliberate. It is also to propose and promote accessible and ethically defensible processes for doing so.

Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.

To be sure, public deliberation will not make the decisions about how to prioritize patients for intensive care any easier, nor will it necessarily make it easier to live with the consequences. But it would ensure that all voices have been heard, innovative approaches have been considered, and that new ethical considerations can come to light. It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic. Other provinces must also follow suit. Specific attention needs to be paid to partnering with people who have been marginalized by both the process and the products of ICU triage development.

The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.

No province in Canada can claim to have a morally legitimate and human rights compliant approach to triage until an accessible and public discussion takes place about how to balance equity with the aim of saving lives in a pandemic.



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As COVID-19 Infections Hit Record Highs and Hospital ICUs Reach the Brink, Five Bioethicists on The Ford Government’s Bioethics Table Release a Public Statement Revealing Major Concerns with Ontario’s Plans for Triage of Critical Care, that Echo Disability Community Objections


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

April 15, 2021 Toronto: A body blow has just been delivered to the Ford Government’s controversial plans for deciding which patients would be refused life-saving critical care, if the crisis overload in Ontario hospital intensive care units requires that life-saving critical care must be rationed or “triaged”. Five members of the Ford Government’s own advisory “Bioethics Table” have today published an online statement, set out below, that strongly criticizes Ontario’s critical care triage plans. Their concerns reflect serious objections to Ontario’s triage plans from the disability community, including from the AODA Alliance.

The five bioethicists (who don’t claim to speak for the entire Bioethics Table) urge that the Government should now reveal its secret critical care triage plans to the public, should consult the public, and should hold and open discussion of how critical care should be triaged, if rationing becomes necessary, without treating this as a purely clinical issue or one for bioethicists to monopolize. (Key excerpts also set out below)

These five authors make it clear that Ontario needs a better approach to critical care triage. This is a direct blast at the Ford Government’s persistent secrecy on this issue and its refusal to speak directly to key stakeholders like those from the disability community. We offer the example that the Government has refused to even answer eight detailed letters from the AODA Alliance since last September which identify well-researched objections.

The five bioethicists explain that decisions over who should get life-saving critical care and who should be refused it during critical care triage is not simply a clinical question (i.e. one of medical science alone). Ontario’s secret critical care triage protocol treats this triage as purely a clinical question. The five authors humbly emphasize that bioethicists themselves have no monopoly on wisdom in the area of how critical care triage should be conducted.

These authors urge that it is important to respect the human rights of disadvantaged groups in society. We add that the AODA Alliance and others have been showing for months that Ontario’s plans are replete with disability discrimination, contrary to the Ontario Human Rights Code.

We expect that the Ford Government will answer that the Bioethics Table, of whom these five authors are a part, held consultations with a number of disability advocates, including the AODA Alliance. That would be no answer. Those discussions ended months ago. The external Bioethics Table only gives advice to The Government. The Bioethics Table makes no decisions on how critical care triage should be conducted, and rejected some of our major concerns without giving reasons for doing so. Those in the Government who do make the decisions have steadfastly refused to talk to us. The Government has hidden behind them for months, like human shields.

The secret January 13, 2021 Critical Care Triage Protocol is not available on any Government website, but is available on the AODA Alliance website.

In light of this important statement by several of The Government’s own external advisors, the AODA Alliance calls on the Ford Government to take these four urgent steps:

1. Now make public the current version of the critical care triage protocol, all reports and recommendations by its external Bioethics Table since September 11, 2021, The Government’s plan of action for rolling out critical care triage if needed, and the results of drills or simulations of critical care triage held at any Ontario hospitals.

2. Remove disability discrimination from the January 13, 2021 Critical Care Triage Protocol, and

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

4. Introduce legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

Key statements to this effect by the five bioethicists on the Ford Government’s external Bioethics Table in this article include:

“As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under.”

“We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources especially to the people most likely to be impacted by intensive care triage decisions as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.”

“Science alone cannot tell us how to allocate ICU beds.”

“Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage”

“Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.”

“It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

“We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic.”

“The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.”

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

For More Background

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

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

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

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

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

Healthy Debate April 15, 2021

Originally posted at https://healthydebate.ca/opinions/icu-triage/?utm_source=mailpoet&utm_medium=email&utm_campaign=we-need-to-talk-about-triaging-critical-care_12

Opinion

Public conversation on the ethics of intensive care triage during pandemic is overdue
by Alison Thompson, Paula Chidwick, Lisa Jennifer Schwartz, Stephanie Nixon, Lisa Forman, Robert Sibbald

COVID-19 has highlighted the ethical challenges in our health-care system, and nowhere is this more apparent than in an overcrowded intensive care unit. ICUs are where the sickest of the sick receive life-saving treatments and where their crashing bodily functions are taken over by high-tech machines.

Even when there isn’t a pandemic, not everyone can get access to intensive care, and not everyone will benefit from it. It is costly, invasive and requires a highly skilled workforce to make it run.

In the early days of the COVID-19 pandemic, people around the world were shocked by the images of ICU doctors working around the clock in Wuhan, Turin and New York. Their faces were etched with bruises from their tight-fitting face masks. Their eyes were haunted by the sheer number of patients they were treating and by the sheer number they couldn’t treat.

These early warnings from other countries signaled that Canadian provinces needed to avoid a major surge of patients that would strain intensive care resources. But, preparing for the worst, work on guidance for intensive care triage began very early on in the pandemic, with Saskatchewan and Quebec starting in late winter 2020 and Ontario in the spring of 2020 across several of its COVID-19 advisory tables.

As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under. To be clear, we do not speak on behalf of the COVID-19 Bioethics Table, but we do speak as scholars in clinical and public health ethics and in human rights law who are also members of that Table.

We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources especially to the people most likely to be impacted by intensive care triage decisions as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.

Rationing intensive care beds is fundamentally an ethical endeavour

Science alone cannot tell us how to allocate ICU beds. Should they go to the sickest patients? Should they go to those who are most likely to benefit from treatment? Should we use a lottery system? Should we withdraw treatment from patients if they are not going to have a meaningful recovery to give the bed to someone who will? And what constitutes a meaningful recovery? These are ethical questions requiring value judgements.

Many pandemic response plans focus on maximizing the benefit of scarce resources to save the most lives. Allocating ICU beds to people who are unlikely to benefit from them is often considered unethical and inefficient. Clinicians who work in the ICU often talk about the moral difficulty of providing treatments that sometimes do more harm than good. The moral burden of care in these circumstances weighs heavily on ICU clinicians when left to make these decisions alone and without ethical guidance.

How should health equity be balanced with utility in intensive care triage?

Society’s failure to address upstream causes of ill health and inequities means that the futility or efficacy of ICU care is often determined well before people are brought to the doors of an ICU. To fail to attend to this in triage frameworks and clinical protocols undermines trust. Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage

Consensus on a proposed ethical framework for pandemic triage, even just among bioethicists, is unrealistic. Nor is it necessarily desirable. In fact, the role of dissensus in bioethics is crucial to avoiding the narrowing of possible policy avenues and avoiding presumptive constructions of various stakeholders.

As bioethicists, our expertise is in sketching the moral landscape, providing options and framing ethical debate. Our job is to propose a possible approach to intensive care triage that the public and stakeholders can then weigh and deliberate. It is also to propose and promote accessible and ethically defensible processes for doing so.

Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.

To be sure, public deliberation will not make the decisions about how to prioritize patients for intensive care any easier, nor will it necessarily make it easier to live with the consequences. But it would ensure that all voices have been heard, innovative approaches have been considered, and that new ethical considerations can come to light. It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic. Other provinces must also follow suit. Specific attention needs to be paid to partnering with people who have been marginalized by both the process and the products of ICU triage development.

The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.

No province in Canada can claim to have a morally legitimate and human rights compliant approach to triage until an accessible and public discussion takes place about how to balance equity with the aim of saving lives in a pandemic.




Source link

More Advocacy Action, More Media, and More Ford Government Secrecy on Ontario’s Disability-Discriminatory Plans for Critical Care Triage If Hospital ICUs Run Out of Space for All Patients Needing Life-Saving Care


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 14, 2021

SUMMARY

Disability advocacy keeps up the pressure on the critical care triage issue while the Ford Government keeps up the secrecy.

a) On April 13, 2021, the ARCH Disability Law Centre wrote the College of Physicians and Surgeons of Ontario. Its excellent letter is set out below. CPSO regulates Ontario physicians. ARCH echoed the AODA Alliance’s serious objections to the position on critical care triage that the CPSO sent to all Ontario doctors last week. The AODA Alliance s objections are set out in our April 9, 2021 letter and our April 13, 2021 letter to the CPSO, all of which we have made public.

ARCH’s letter amplified our disability concerns. We thank ARCH for its letter, and for working so closely together with the AODA Alliance and other disability advocates on this issue.

b) On April 13, 2021 Andrea Horwath, Ontario’s Leader of the Official Opposition, and Joel Harden, the Ontario NDP disability critic, released a strong statement on the critical care triage issue, also set out below. It blasts the Ford Government for its secret critical care triage protocol that wrongly discriminates based on disability. We thank the NDP for this action, and urge it to give this urgent issue as much public attention as possible.

c) On April 12, 2021, the Thunder Bay Family Network held a Zoom public forum to rally disability rights organizers and advocates in northern Ontario on the disability discrimination concerns with the Ontario critical care triage protocol and plan. AODA Alliance Chair David Lepofsky spoke at that event. A video of that event is posted on TBFN’s Facebook page. We congratulate TBFN and all those who attended and who made this such a success. We urge other organizations to hold similar events. We’d be delighted to help. Email the AODA Alliance at [email protected]

d) There continues to be some media attention on the critical care triage issue, but we need more of it!

We congratulate the fiery Dahlia Kurtz for her new national program on Sirius-XM Radio Channel 167, and applaud her for including AODA Alliance Chair David Lepofsky on that show’s third day on the air on April 14, 2021. That should be available later today at https://soundcloud.com/canadatalks

Below we set out the April 8, 2021 Toronto Star report on where the Ford Government stands on the idea of it agreeing in advance to pay all doctors’ claims for deaths due to critical care triage under the disability-discriminatory Ontario critical care triage protocol. We regret that the Toronto Star did not identify or address the disability issues here, as the Star last did several months ago.

We also set out below a column in the April 2, 2021 London Free Press. It identified AODA Alliance concerns with the Ford Government’s mishandling of the critical care triage issue.

e) The Ford Government’s delays on disability accessibility seem interminable. There have now been 804 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 comprehensive 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 1,358 days left until 2025, the deadline by which the Government must have led Ontario to become fully accessible to people with disabilities.

For More on these issues, check out

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

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

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

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

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

6. You can also visit the AODA Alliance’s COVID-19 web page to see what we have been up to, trying to ensure that the needs of people with disabilities during the COVID-19 crisis are properly addressed. Send us your feedback! Write us at [email protected] Please stay safe!

MORE DETAILS

April 13, 2021 ARCH Disability Law Centre Letter to the College of Physicians and Surgeons of Ontario

55 University Avenue, 15th Floor
Toronto, Ontario M5J 2H7
www.archdisabilitylaw.ca
(416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)
(416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)
(416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) (Toll Free)

Sent via email at [email protected] and [email protected] April 13, 2021
Dr. Nancy Whitmore, Registrar and CEO
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

Dear Dr. Whitmore:

Re: Triaging of Critical Care in Ontario

I am writing on behalf of ARCH Disability Law Centre in response to your email correspondence to members of the College of Physicians and Surgeons of Ontario on April 8, 2021, and the College’s subsequent response to the AODA Alliance dated April 12, 2021. ARCH shares the concerns raised by the AODA Alliance in its April 9th and April 13th letters.

We understand and appreciate the context of your correspondence, and the need to respond to the challenging circumstances that this pandemic continues to thrust on our health care service providers including physicians and surgeons. We also understand the need for a plan as this third wave of the pandemic overwhelms hospitals and critical care resources.

Your email correspondence addresses physicians’ obligations regarding the withholding and withdrawing of critical care. You state that the College supports deviation from its policies in following triage frameworks as developed by the command table.

Respectfully, your stated intention to ensure public trust in decision-making is eroded by supporting a critical care triage protocol that has been kept secret, on which there has been no proper public consultation, and which has been subject to serious disability discrimination objections. Disability advocates, and other marginalized communities, have been outspoken for over a year since the first Triage Protocol draft was leaked, identifying serious unlawful discriminatory implications that have persisted and have not yet been remedied. In addition, your correspondence does not clarify that all actions by your members must be taken free from any discrimination. Human rights protections under Ontario’s Human Rights Code and the Canadian Charter of Rights and Freedoms continue to fully apply during a pandemic. It is precisely during times such as these that our human rights protections are most critical. We are concerned that the College’s messaging disregards and dispenses entirely with such human rights concerns, to the serious detriment of Ontario physicians and patients.

Moreover, in considering public interest and protecting the rights of our most vulnerable patients, any messaging by the College that supports a potentially discriminatory framework and contemplates limitations on patients’ rights such as the making of complaints to the College is troubling and inappropriate.

The public looks to the College to objectively and impartially decide any individual complaints against member physicians. It must not pre-decide issues on which it will have to rule. The public must be given confidence that its complaints process is a fair one. The College’s April 8, 2021 email to its members is inconsistent with that obligation, on a topic where the public needs a strong assurance, rather than a cause for concern.

We urge the College to rescind and clarify its message and ensure that its members understand their paramount human rights obligations during this pandemic, and their continued human rights obligations regardless of what triage frameworks are ultimately approved.

Sincerely,
ARCH Disability Law Centre
Robert Lattanzio
Executive Director

cc:
Premier Doug Ford [email protected]
Christine Elliott, Minister of Health [email protected] Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected]
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister of Children, Community and Social Services [email protected] Ena Chadha, Chief Commissioner, Ontario Human Rights Commission [email protected]
David Lepofsky, Accessibility for Ontarians with Disabilities Act Alliance [email protected]

April 13, 2021 Statement by New Democratic Party on Critical Care Triage

April 13, 2021

Ford’s triage protocol needs public consultation and must respect disability rights

QUEEN’S PARK NDP Leader Andrea Horwath and MPP Joel Harden (Ottawa Centre), the NDP’s critic for Accessibility and Persons with Disabilities, said that as ICUs struggle to provide care for a rising number of people in critical condition, the provincial government must hold open consultations on the triage protocol and remove disability discrimination from it.

We all desperately hope the triage protocol will never have to be triggered, and there is more the provincial government can do to prevent that horrific scenario from playing out in Ontario. But preparing for life-and-death decisions about the lives of people, including people with disabilities, should not be done by the Ford government in secret, said Horwath. It’s time for this government to do the work it should have done months ago, and consult with disability and human rights groups, as well as Ontario families who will bear the consequences of these decisions.

Horwath and Harden said Doug Ford must stop ignoring human rights leaders and over 200 community organizations that wrote to the Ford government over a year ago exposing and denouncing its directions to Ontario hospitals on life-saving critical care that discriminates against people with disabilities. According to the Toronto Star, the Ford government is considering indemnifying critical care physicians from lawsuits which means the government is planning for doctors to have to make life-and-death decisions about allocating care, but is doing so behind closed doors.

“People with disabilities face a higher risk of getting and being severely impacted by COVID-19,” said Harden. “The Ford government must immediately remove disability discrimination from its clinical triage protocol, and respect the human rights of patients with disabilities.”

Toronto Star April 8, 2021

News

Originally posted at https://www.thestar.com/politics/provincial/2021/04/07/premier-doug-ford-instituting-province-wide-stay-at-home-order-expected-to-begin-thursday-sources-say.html

[Premier Doug Ford is vowing to have…]

Rob Ferguson, Robert Benzie and Kristin Rushowy Queen’s Park Bureau
Premier Doug Ford is vowing to have 40 per cent of adults vaccinated against COVID-19 – including essential workers over age 18 in Toronto and Peel Region hot spots – during Ontario’s 28-day stay-at-home order that begins Thursday.

Declaring a third state of emergency in a year, Ford said special education workers across the province and “all education workers in high-risk neighbourhoods in Toronto and Peel” would also begin getting shots during next week’s spring break, with dangerous variants of the virus spreading by the day.

The stay-at-home order, which could be extended, goes to May 6. The premier’s office said Ford’s 40 per cent vaccination target should get enough first doses to hot zones and quell transmission levels there.

“We need to get the vaccines where they will have the greatest impact as quickly as possible,” a sombre Ford said Wednesday, bowing to pressure from health experts and educators for targeted shots in trouble spots where outbreaks have resulted in younger adults being hospitalized at higher rates.

Vaccines will be sent to more hot zones in other municipalities as supplies allow.

“I am pleased with the pivot,” said Dr. Michael Warner, medical director of critical care at Michael Garron Hospital, formerly Toronto East General Hospital. He warned that adults under age 50 in ICUs are now dying at twice the speed of the first and second waves, with one fatality every 2.8 days.

For Toronto and Peel hot spots, Ford said mobile teams and pop-up clinics are being organized to give jabs to anyone over 18 living in highly impacted neighbourhoods.

The trigger for the second stay-at-home order since January was a sudden increase in admissions of critically ill Ontarians to hospital intensive care units above levels that had been predicted in the “worst-case” modelling scenarios, threatening the health-care system, Ford added.

“How we handle the next four weeks, what we do until we start achieving mass immunization, will be the difference between life and death for thousands of people,” he said, brushing aside criticisms that he should have acted sooner on the stay-at-home order given repeated warnings from his science advisers.

“Ford walked us right into this lockdown with eyes wide open,” New Democrat Leader Andrea Horwath told reporters.

“Experts made it clear every step of the way – he was reopening too quickly, taking away public health protections too soon, and implementing half-measures that would not stop the spread.”

With ICU admissions increasing, Health Minister Christine Elliott said the government is trying to boost hospital capacity. It has not yet prepared a cabinet order indemnifying intensive care physicians from liability in making difficult triage decisions as to which patients will get the resources needed to have the best chance to survive, she said.

“We haven’t finalized any of that.”

The province’s science advisers have cautioned the scenario seen last year in New York City and northern Italy, where ICUs were overwhelmed, would become reality in Ontario once patient levels of about 800 are reached in critical care.

The province is at 504 – a record in the pandemic – after a one-third rise in the last week and more admissions expected with the province averaging almost 3,000 new infections a day.

Elliott said many hospitals are at capacity, meaning there is no way for Ontario to vaccinate its way out of the situation and a four-week stay-at-home order is crucial to containing the virus and its highly contagious variants.

“The variants have won this round of the race,” Peel medical officer Dr. Lawrence Loh told a news conference in Brampton. “Close down, vaccinate, and get out of this.”

There were 3,215 new infections reported Wednesday – including 1,095 in Toronto and 596 in Peel – with 17 more deaths bringing the pandemic total to 7,475 fatalities.

The government limited retailers open for in-person shopping mainly to supermarkets, pharmacies, LCBO outlets, and takeout restaurants. Non-essential retailers go back to online sales and curbside pickup. Malls can designate one indoor location for customer pickup of items by appointment.

In a change from a similar order issued to quell the second wave in January, big box stores like Walmart and Costco will be limited to selling essential food, pharmacy, personal and pet care items.

Employees who can are asked to work from home and trips outside the home should be for essential reasons only, such as food shopping, medical appointments and exercise.

Close contact with anyone from another household is discouraged.

The changes came six days after the premier announced an Ontario-wide “lockdown” widely panned as inadequate since it just closed restaurant patios, indoor dining and personal services such as hair salons and barber shops that were open in areas outside Toronto and Peel, and not already in lockdown.

Toronto’s public and Catholic schools closed to in-person learning Wednesday, following in the footsteps of Peel Region schools the day before.

Ford rejected pressure from health experts and opposition parties to introduce a sick pay policy so that people with COVID-19 symptoms and without benefits can stay home if ill. Ford said a federal program is available.

The stay-at-home order is a dramatic turnaround from recent weeks, in which Ford allowed non-essential retailers in lockdown zones to open to 25 per cent customer capacity, raised indoor dining capacity limits in bars and restaurants outside lockdown areas and permitted sidewalk patios in Toronto and Peel.

There was also the promise that barber shops, hair and nail salons could open April 12 in Toronto, Peel and other regions elevated to lockdowns, but as infection levels grew across the province those hopes were dashed.

Cases of COVID-19 are up more than 70 per cent in the last two weeks.

London Free Press April 2, 2021

Originally posted at https://lfpress.com/opinion/columnists/baranyai-triage-framework-should-be-debated-if-public-is-to-have-confidence-as-third-wave-rises Baranyai: Triage framework should be debated as COVID’s third wave rises Author of the article: Robin Baranyai Special to Postmedia News A triage nurse waits for patients in the Emergency Department. (File photo)
Under normal circumstances, patient triage is about identifying who should be treated first: who needs resuscitation, and who can wait to have their broken wrist set. It is not a question of whether the patient receives the care they need, but when.

Last March, that assumption was turned on its head. The world watched in horror as Italy’s well-regarded health-care system, with 3.2 hospital beds per 1,000 people (compared to 2.5 in Canada), was overwhelmed.

The case for delaying the second vaccine dose
Faced with too many patients and too few ventilators, doctors were forced to decide on the fly where scant resources should be allocated. All too often, it came down to the patient’s age.

Canadians hope to avoid these unthinkable choices. As they say: Hope for the best, but plan for the worst.

Concerns again were raised this week about Ontario’s emergency standard of care, designed to provide consistent medical guidance on decisions should they become necessary about who receives care, by prioritizing resources for the patients most likely to survive. The protocol includes an online risk calculator for short-term mortality.

The protocol has been shared with Ontario hospitals, though not approved by the Ministry of Health, nor officially made public. The ministry has deflected queries to Jennifer Gibson, director of the University of Toronto’s joint centre for bioethics, and co-chair of the government’s bioethics table, which developed the triage framework.

It’s not shocking there is a protocol for making life-or-death care decisions, should hospital resources be overwhelmed. It would be shocking if there were not.

It is concerning, however, that an updated version of the protocol was brought to light by a disability advocacy group, and not by an open process of consultation, as recommended by both the bioethics table and the Ontario Human Rights Commission.

Under the protocol, two physicians would be involved in treatment decisions. The online tool allows doctors to input data on the severity of comorbid conditions, such as cancer, to help estimate patients’ odds of survival. Those with the best chance of surviving 12 months would be given priority for ICU beds.

The use of a clinical frailty scale (CFS) in risk calculations was flagged by the Accessibility for Ontarians with Disabilities Act (AODA) Alliance. It measures the ability to perform everyday tasks in patients older than 65. While a CFS may reduce the subjectivity of assessments, the AODA Alliance rightly points out, difficulty people with disabilities have with everyday tasks may have nothing to do with their odds of survival.

Similar concerns were raised by disability advocates in Quebec. An expert working group developed an emergency protocol last March, and the province held open consultations. The emergency protocol was revised after hearing from advocacy groups, including the Quebec Intellectual Disability Society.

Quebec’s protocol goes further than Ontario’s, establishing criteria by which patients could be removed from life support, if needed, without their consent. As yet, there is no mechanism in Ontario to prioritize treatment of patients with a higher likelihood of survival over those on life support.

This is deeply uncomfortable territory. It forces us to think about choices we’d rather not make, or have made for us. But if we want continued confidence in our health-care system, people need to know how these decisions could be made.

The hard choices of battlefield medicine may not be theoretical for long. At the height of the second wave in January, the number of COVID-19 patients in Ontario ICUs peaked at 420. As of Monday, there were 390.

The battle here is not only between patient care and system capacity. It is between communication and opacity; transparency and uncertainty. Transparency builds confidence.

[email protected]




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


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

April 1, 2021

SUMMARY

1. The News

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

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

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

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

2. Some Reflections on the News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr. Downar also earlier said during that webinar:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frolic’s remarks are riddled with fatal flaws.

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

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

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

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

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

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

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

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

As of now, there have been an inexcusable 791 days, well over two years, since the Ford Government received the final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that ground-breaking report. This worsens the festering problems facing patients with disabilities during the COVID-19 pandemic, such as those threatened by the possibility of critical care triage . There are only 3 and ¾ years left for the Ontario Government to lead Ontario to become fully accessible to 2.6 million people with disabilities, as the Accessibility for Ontarians with Disabilities Act requires.

For more background on this issue, check out:

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

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

3. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
4. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.

5. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.

6. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.

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

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

MORE DETAILS

CTV Online News March 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Globe and Mail March 4, 2021 / News
OPINION

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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