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


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

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

SUMMARY

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

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

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

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

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

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

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

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

For more background, check out:

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

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

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

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

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

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

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

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

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

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

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

Stakeholder Roundtable

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

Summary Report

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

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

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

Key Issues/Concerns and Potential Actions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roundtable Facilitator:
Kwame McKenzie (CEO, Wellesley Institute)

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

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

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

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

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

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

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

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

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

APPENDIX 2: Development of the Proposed Framework

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

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

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

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

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

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

Acknowledgments:

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

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

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

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

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

APPENDIX 3: Roundtable Documents

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

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

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

Publicly Available Advocacy/Feedback related to Critical Care Triage

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

Journal & Media Articles

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

Summary of OHRC Feedback on Triage Framework
December 18, 2020

Interim Framework / Protocol

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

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

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

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

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

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

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

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

o Ensure a fair and efficient appeal mechanism

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

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

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

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

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

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

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

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

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

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

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

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

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




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


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

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

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

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

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

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

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

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

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

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




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If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield


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

February 1, 2021

SUMMARY

Is the Ford Government on the verge of trying to do a dangerous tap dance in a constitutional minefield? Imagine this scene: In the days ahead, a somber Premier Doug Ford appears at his televised COVID-19 news conference. His voice is very serious. His face looks terribly distressed.

I must today announce a drastic measure that the COVID-19 emergency requires us to take, he might say. We have tried everything to avoid this for the past twelve months, and have taken every step short of this drastic new step I must announce today.

Imagine him then announcing that his Cabinet has passed some sort of executive order or regulation that temporarily suspends Ontario’s Health Care Consent Act. That legislation forbids a doctor from withdrawing life-saving medical care from a patient, without the consent of the patient or, if incapacitated, their substitute decision-maker. It provides a process for the Consent and Capacity Board CCB to be engaged in case of a dispute.

One could imagine Premier Ford saying that the Government does not want to do this, but it was recommended by its Bioethics Table, a panel of medical and bioethics experts. We have no choice.

The AODA Alliance wants to be 100% clear that as far as we know, the Government has not yet done this. We and, no doubt, the Government all hope it does not happen. However, we must now turn our minds to this possibility. This is because the January 21, 2021 reported that the Ford Government’s external advisory Bioethics Table recommended to the Government that it should take just such a step. The article was entitled Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals. Neither the Government nor the Bioethics Table has denied this report, to our knowledge.

Whether or not such an order or regulation is a good thing to do, there is ample reason to seriously question whether it is something the Ford Government can do at present, by Cabinet simply passing some sort of regulation or executive order. In This AODA Alliance Update, we explain why. The ARCH Disability Law Centre released a public statement on January 28, 2021 which raises serious concerns, based on its expertise in disability law.

The Ford Government is not discussing this issue in public. Whatever it is discussing, it is taking place behind closed doors.

Issues we raise in this Update will be a matter of serious concern both for patients and doctors. Doctors’ well-known Hippocratic oath is absolutely central to their professional and ethical duties and their sense of mission. That oath requires every doctor to swear or affirm, among other things, that they will do no harm. How can a doctor be faithful to that oath if they were to actively withdraw life-saving critical medical care from a patient who needs that care and who has not consented to its being withdrawn?

We call on the Government to immediately end its protracted secrecy on this issue, and on the overall topic of critical care triage. These topics, and the Government’s plans, must be fully discussed and debated publicly. The Government should come clean on whether it is considering the possibility of trying to override or suspend the Health Care Consent Act. Most important, the Government should now categorically state that it will not try to suspend or override that important law, in whole or in part.

We should not have such a drastic step as this sprung on us and all Ontarians at the last minute, by a somber announcement such as that imagined above, and with an emergency used as an excuse for months of unwarranted Government secrecy.

MORE DETAILS

1. How This Might Work in Practice

What could it mean to seriously ill patients in hospital and their families if the Ford Government took the drastic action we address in this Update? Imagine a seriously ill patient who needs life-saving critical care in a hospital. Imagine that they are admitted to an Intensive Care Unit and begin receiving critical care. However, the COVID-19 pandemic keeps straining our hospitals, so much that the Ford Government decides that there are more critical care patients than there is capacity in hospitals to handle. Government decides that critical care bed, ventilators and services must be rationed or triaged. Under the January 13, 2021 triage protocol which the Government sent to Ontario hospitals to direct how such triage would happen, doctors would choose who, in the lineup for critical care, would be admitted to critical care. Some would be told there is no room. That is quite likely a death sentence for those who are not admitted. That would be bad enough.

However, it would be even worse if doctors could also evict a patient from their spot in critical care, partway through their treatment, to make room so another patient could be admitted whom the doctors feel has a better chance of surviving. Although it is in some ways unclear on this, the January 13, 2021 triage protocol may not direct hospitals generally to evict critical care patients in such situations from critical care. We wrote Health Minister Christine Elliott on January 18, 2021 to ask for this to be clarified. As with all our letters to her on the triage topic, she has not answered.

According to the January 21, 2021 edition of the National Post, the Government’s advisory Bioethics Table has recommended that the Ford Government act even more drastically than the January 13, 2021 triage protocol. They have reportedly recommended that the Government pass some sort of order or regulation to give doctors the power to withdraw critical care from a patient who is in the middle of receiving it and who needs it, as part of critical care triage. It is to that possibility that we are turning attention here.

As stated above, the Government has not said that it has implemented the Bioethics Table’s drastic recommendation on this. That gives us no comfort, because the Government has said very little about the entire topic of critical care triage. What it has said at all about critical care triage has, at times, been of questionable candor and accuracy.

How might this situation play out in a hospital? If the Ford Government passed some sort of regulation or executive order, as the Bioethics Table recommended, to suspend the Health Care Consent Act, and if critical care triage is directed to take place, doctors in a hospital might look at a critical care patient (We’ll call him Tom) who is already receiving critical care. The doctors might decide that Tom has less than a year to live and that his chances don’t look good. The doctors might then look at those patients in the lineup to get into critical care, and conclude that one or of them (We’ll call her Betty) has a better chance of surviving a year or more.

The doctors would be able to withdraw the critical care, already in progress for Tom, and transfer that critical care to Betty. Betty would get Tom’s critical care bed, ventilator and services instead of Tom. The proverbial plug could be pulled on Tom, without his consent or the consent of his substitute decision-maker.

We do not here explore how exactly the doctors would compare or evaluate Tom’s and Betty’s likely chances of survival. We do note that in The January 22, 2021 edition of CBC Radio’s White Coat Black Art program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

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

He explained that this is not how treatment decisions are now made, and that doing this would be very difficult to do because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life because it’s a policy on paper

Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

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

To be extremely fair, we emphasize that Dr. Warner was not asked to discuss the situation if the Government took the drastic step of trying to override the Health Care Consent Act. Nevertheless, his concerns, quoted above, would seem to us to apply equally to such a drastic situation.

If doctors could unilaterally pull the plug on an existing critical care patient like Tom, over their objection, no patient in an Intensive Care Unit could feel safe that they won’t be evicted at some point, to make room for someone else, before it would be medically appropriate to stop giving them critical care they need. Under the January 13, 2021 triage protocol, any patient needing critical care who would be denied critical care would still be offered medical care, but it would be something less than the life-saving care one gets in critical care.

2. Recklessly Tap-Dancing in a Constitutional Minefield

What is the constitutional minefield that this would create? It has many layers.

If Tom, the evicted critical care patient, dies as a result, it would not be surprising for his family to consider suing the doctor, the hospital and the Ford Government for this death. We cannot and absolutely don’t here offer legal advice to anyone. However, we can foresee some of the arguments that might be made on Tom’s behalf.

To defend themselves, the doctor and hospital could be expected to point to the Government’s January 13, 2021 triage protocol and say they were following this direction. As for withdrawing critical care from Tom, a patient who is in the middle of receiving critical care, the doctor, hospital and Government could also be expected to point to any regulation or executive order that the Government might pass in an attempt to suspend the Health Care Consent Act, and say that they were following it when they took away critical care from Tom, over his objection.

We now arrive at the constitutional minefield. Here are just some of the points that Tom’s family might present. A court would have to rule on these arguments and the responses or defences that the doctor, hospital and/or Government might present. Each of these arguments, if successful, might be sufficient to knock out the defence.

1. Tom’s family might well argue that the Government cannot give directions on who lives and who dies during critical care triage by simply sending hospitals a memo, which is all the January 13, 2021 triage protocol is. The Government would have to show that those sending the memo had the legal mandate to make such decisions and give such life-and-death directions by simply sending a memo like the January 13, 2021 triage protocol.

2. If the Ford Government did not approve the January 13, 2021 triage protocol, Tom’s family might argue that the Government has an even more uphill argument if it wants to argue that the January 13, 2021 triage protocol was somehow authorized by law. This is because the Ford Government had told media that it did not approve the January 13, 2021 triage protocol. This is so even though it states in the document that it was approved by the Ontario Critical Care COVID Command Centre. It was the Ford Government that set up the Ontario Critical Care COVID Command Centre.

3. If Cabinet passed a regulation or order suspending the Health Care Consent Act, Tom’s family can be expected to argue that the Ford Government’s Cabinet did not have the power to make such a regulation or executive order. To make a regulation or like order, it would be practically necessary for the Government, the doctors and/or the hospital to show that the Legislature gave Cabinet the power to pass such a regulation or order.

Tom’s family might argue that a piece of legislation, supposedly conferring this power on Cabinet, is itself unconstitutional. If so, then Cabinet cannot use it to override the Health Care Consent Act.

If that argument fails, Tom’s family could argue that the piece of legislation supposedly conferring that power on Cabinet, should be interpreted narrowly, and that so interpreted, it did not authorize the Cabinet to make the regulation or order on which the Government, doctors and hospital rely.

This can be a complicated legal issue. We do not here review the legislative options that the Government might try to rely on to authorize such a regulation or executive order. However, Tom’s family could be expected to argue that the Legislature cannot simply give Cabinet carte blanche to pass any regulation it wants on any topic it wants.

Among other things, Tom’s family could urge the Court to interprete narrowly any legislation that gives Cabinet power to make regulations and orders. They could well argue that before a court agrees that legislation gives Cabinet the power to pass a drastic relation or issue a drastic order that suspends the Health Care Consent Act or that otherwise infringes Tom’s constitutional rights guaranteed by the Charter of Rights, that legislation must make it clear that the Legislature meant to give Cabinet such a drastic power. Tom’s family can also be expected to argue that any legislation, supposedly giving Cabinet such power, should be interpreted strictly and restrictively. The Legislature should not be able to pass the buck to Cabinet on so serious a topic. The Legislature must debate issues in public, with the Opposition present and participating. In sharp contrast, the Cabinet meets in secret, with no Opposition present.

Put another way, Tom’s family could argue that when a court interpretes legislation that gives power to Cabinet to make regulations, it should be presumed that this did not include a power to infringe the constitutional rights of medical patients, guaranteed by the Canadian Charter of Rights and Freedoms, or other basic rights to consent to medical decisions about their own health care, unless the Legislature said so in the clearest of language. For example, the family might well be expected to argue that the Legislature did not intend to delegate to Cabinet the power to grant exemptions from the Health Care Consent Act, if this will involve discrimination against patients with disabilities. The AODA Alliance and the ARCH Disability Law Centre have shown how the January 13, 2021 triage protocol presents the danger of disability discrimination. All that the Government’s defenders who have spoken in public have said in its defence is to say that the January 13, 2021 triage protocol states that doctors should not discriminate based on grounds like disability. However, that protocol goes on to tell doctors to use the Clinical Frailty Scale for some patients, when deciding if they should be refused or evicted from critical care. We have shown that this Scale is replete with disability discrimination. The protocol’s earlier statement to doctors not to discriminate based on disability does not cure or reduce the Clinical frailty Scale’s disability discrimination.

As well, the January 13, 2021 triage protocol does not provide a critical care patient with any due process, such as a right of appeal, if doctors decide to refuse them critical care, or to evict a critical care patient from the Intensive Care Unit. Tom’s family could well try to argue that the Legislature should not be taken as giving Cabinet the power to suspend the Health Care Consent Act without any due process for patients, unless the Legislature said so very explicitly.

Similarly, Tom’s family can be expected to argue that a court should be very reluctant to interprete legislation as giving Cabinet the power to make a regulation or other order that endangers a medical patient’s right to life, which is spelled out in section 7 of the Charter of Rights. Tom’s family may contend that this right is at stake when talking about refusing a patient critical care they need, or unplugging them from critical care they need and are already receiving.

4. If any of those arguments by Tom’s family succeed, then the doctors, hospital and Government could be in hot water. There is even more to this minefield, even if it were assumed that those arguments by Tom’s patient’s family might not succeed.

Tom’s family could try to argue that Cabinet’s regulation or order or the doctors or hospitals actions under them and under the January 13, 2021 triage protocol nevertheless violate tom’s constitutional rights under the Charter of Rights. They would want to argue that in Eldrige v. B.C., Canada’s leading ruling on the Charter’s guarantee of equality to people with disabilities, the Supreme Court of Canada said that a patient can invoke the Charter to challenge the delivery of health care services in a hospital (there, the failure to provide a Sign Language interpreter to a deaf emergency room patient).

For example, Tom’s family could try to argue that the treatment of Tom by the doctors, hospital and/or the Government included disability discrimination contrary to Charter s. 15 (equality without discrimination on grounds like disability) and/or it denied the patient fair procedure in the triage process as guaranteed by Charter s. 7. (The right to not be deprived of one’s life without fulfilling the principles of fundamental justice). If a court was persuaded that any of these Charter rights were violated, the Government might try to argue that Charter s. 1 saves the day for them. Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Government would have to argue that a suspension of the Health Care Consent Act was justified due to the COVID-19 emergency. However, there are many arguments that the courts will have to consider. It will not be an easy task. It is the Government that must prove that s. 1 justifies government action.

Tom’s family might argue that by February 2021, this emergency was neither sudden nor unexpected. The COVID-19 pandemic had raged for almost a year. The Government knew in February 2020 that it should prepare for the eventuality of critical care triage. Yet as the AODA Alliance website amply shows, the Government has refused to embark on a proper public debate and discussion of this issue. It has dealt with it via secret triage protocols, closed door meetings, and a protracted failure to directly consult the public (including people with disabilities).

We and others repeatedly alerted the Government to the pitfalls in its triage planning, sought a chance to deal directly with the Government, and offered constructive solutions. This is an eventuality for which the Government could have been prepared with less drastic measures, had it properly planned for it.

5. Even if it were assumed that Tom’s family failed on each and every one of the preceding arguments, still more dangers await the Government in this constitutional minefield. Tom’s family might be expected to argue that Ontario cannot authorize a doctor or hospital to withdraw critical care from a patient who needs it and who is receiving it, over the objection of the patient or their substitute decision-maker, without running afoul of the Criminal Code’s provisions on culpable homicide. His family may choose to argue that under Canada’s Constitution, it is Canada’s Parliament, and not a provincial Legislature or Government, that decides what constitutes a criminal homicide. If unplugging a patient from a ventilator or otherwise evicting them from critical care that they need without their consent is criminal conduct in some situations, Tom’s family may argue that Ontario’s Legislature, Cabinet or Government cannot legalize it.

3. There are Ready Solutions Open to the Ford Government

What is the solution to this minefield in which Premier Doug Ford could soon find himself dangerously tap-dancing? It includes steps like these:

1. Stop dealing with the critical care triage issue in secret, behind closed doors. Immediately embark on a public discussion of it. Don’t continue to hide behind the Government-appointed external, advisory Bioethics Table. Stop using that group as human shields. Talk directly to those of us in society, like disability advocates, who have ideas to share. Answer our seven unanswered letters on the critical care triage topic.

2. Take off the table the option of suspending the Health Care Consent Act and letting doctors withdraw life-saving critical care from a patient who needs it and is receiving it.

3. Ensure that whatever the Government does in this area will be properly authorized by legislation. If legislation is needed, this should be immediately introduced into the Legislature for debate. Public hearings should be held. It should not be rammed through without a proper chance for public input.

4. Ensure that whatever the Government does regarding triage is fully constitutional. Don’t put families in the position of having to fight the Government after the fact, and after the devastating trauma of having to lose a family member.

5. Implement an immediate, public, aggressive strategy to reallocate enough health care workers to ensure that Ontario has enough capacity to deliver effective critical care to all who need it, even in the face of further surges in demand due to COVID-19. That could eliminate any need for triage of critical care.

The AODA Alliance is standing by and ready to help.

4. Learn More About Ontario’s Controversial Critical care Triage Issue

For more background on this issue, check out:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

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

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




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If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield

February 1, 2021

            SUMMARY

Is the Ford Government on the verge of trying to do a dangerous tap dance in a constitutional minefield? Imagine this scene: In the days ahead, a somber Premier Doug Ford appears at his televised COVID-19 news conference. His voice is very serious. His face looks terribly distressed.

“I must today announce a drastic measure that the COVID-19 emergency requires us to take,” he might say. “We have tried everything to avoid this for the past twelve months, and have taken every step short of this drastic new step I must announce today.”

Imagine him then announcing that his Cabinet has passed some sort of executive order or regulation that temporarily suspends Ontario’s Health Care Consent Act. That legislation forbids a doctor from withdrawing life-saving medical care from a patient, without the consent of the patient or, if incapacitated, their substitute decision-maker. It provides a process for the Consent and Capacity Board CCB to be engaged in case of a dispute.

One could imagine Premier Ford saying that the Government does not want to do this, but it was recommended by its Bioethics Table, a panel of medical and bioethics experts. “We have no choice.”

The AODA Alliance wants to be 100% clear that as far as we know, the Government has not yet done this. We and, no doubt, the Government all hope it does not happen. However, we must now turn our minds to this possibility. This is because the January 21, 2021 reported that the Ford Government’s external advisory Bioethics Table recommended to the Government that it should take just such a step. The article was entitled “Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals.” Neither the Government nor the Bioethics Table has denied this report, to our knowledge.

Whether or not such an order or regulation is a good thing to do, there is ample reason to seriously question whether it is something the Ford Government can do at present, by Cabinet simply passing some sort of regulation or executive order. In This AODA Alliance Update, we explain why. The ARCH Disability Law Centre released a public statement on January 28, 2021 which raises serious concerns, based on its expertise in disability law.

The Ford Government is not discussing this issue in public. Whatever it is discussing, it is taking place behind closed doors.

Issues we raise in this Update will be a matter of serious concern both for patients and doctors. Doctors’ well-known Hippocratic oath is absolutely central to their professional and ethical duties and their sense of mission. That oath requires every doctor to swear or affirm, among other things, that they will “do no harm”. How can a doctor be faithful to that oath if they were to actively withdraw life-saving critical medical care from a patient who needs that care and who has not consented to its being withdrawn?

We call on the Government to immediately end its protracted secrecy on this issue, and on the overall topic of critical care triage. These topics, and the Government’s plans, must be fully discussed and debated publicly. The Government should come clean on whether it is considering the possibility of trying to override or suspend the Health Care Consent Act. Most important, the Government should now categorically state that it will not try to suspend or override that important law, in whole or in part.

We should not have such a drastic step as this sprung on us and all Ontarians at the last minute, by a somber announcement such as that imagined above, and with an emergency used as an excuse for months of unwarranted Government secrecy.

            MORE DETAILS

 1. How This Might Work in Practice

What could it mean to seriously ill patients in hospital and their families if the Ford Government took the drastic action we address in this Update? Imagine a seriously ill patient who needs life-saving critical care in a hospital. Imagine that they are admitted to an Intensive Care Unit and begin receiving critical care. However, the COVID-19 pandemic keeps straining our hospitals, so much that the Ford Government decides that there are more critical care patients than there is capacity in hospitals to handle. Government decides that critical care bed, ventilators and services must be rationed or triaged. Under the January 13, 2021 triage protocol which the Government sent to Ontario hospitals to direct how such triage would happen, doctors would choose who, in the lineup for critical care, would be admitted to critical care. Some would be told there is no room. That is quite likely a death sentence for those who are not admitted. That would be bad enough.

However, it would be even worse if doctors could also evict a patient from their spot in critical care, partway through their treatment, to make room so another patient could be admitted whom the doctors feel has a better chance of surviving. Although it is in some ways unclear on this, the January 13, 2021 triage protocol may not direct hospitals generally to evict critical care patients in such situations from critical care. We wrote Health Minister Christine Elliott on January 18, 2021 to ask for this to be clarified. As with all our letters to her on the triage topic, she has not answered.

According to the January 21, 2021 edition of the National Post, the Government’s advisory Bioethics Table has recommended that the Ford Government act even more drastically than the January 13, 2021 triage protocol. They have reportedly recommended that the Government pass some sort of order or regulation to give doctors the power to withdraw critical care from a patient who is in the middle of receiving it and who needs it, as part of critical care triage. It is to that possibility that we are turning attention here.

As stated above, the Government has not said that it has implemented the Bioethics Table’s drastic recommendation on this. That gives us no comfort, because the Government has said very little about the entire topic of critical care triage. What it has said at all about critical care triage has, at times, been of questionable candor and accuracy.

How might this situation play out in a hospital? If the Ford Government passed some sort of regulation or executive order, as the Bioethics Table recommended, to suspend the Health Care Consent Act, and if critical care triage is directed to take place, doctors in a hospital might look at a critical care patient (We’ll call him Tom) who is already receiving critical care. The doctors might decide that Tom has less than a year to live and that his chances don’t look good. The doctors might then look at those patients in the lineup to get into critical care, and conclude that one or of them (We’ll call her Betty) has a better chance of surviving a year or more.

The doctors would be able to withdraw the critical care, already in progress for Tom, and transfer that critical care to Betty. Betty would get Tom’s critical care bed, ventilator and services instead of Tom. The proverbial plug could be pulled on Tom, without his consent or the consent of his substitute decision-maker.

We do not here explore how exactly the doctors would compare or evaluate Tom’s and Betty’s likely chances of survival. We do note that in The January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

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

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…”

Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

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

To be extremely fair, we emphasize that Dr. Warner was not asked to discuss the situation if the Government took the drastic step of trying to override the Health Care Consent Act. Nevertheless, his concerns, quoted above, would seem to us to apply equally to such a drastic situation.

If doctors could unilaterally pull the plug on an existing critical care patient like Tom, over their objection, no patient in an Intensive Care Unit could feel safe that they won’t be evicted at some point, to make room for someone else, before it would be medically appropriate to stop giving them critical care they need. Under the January 13, 2021 triage protocol, any patient needing critical care who would be denied critical care would still be offered medical care, but it would be something less than the life-saving care one gets in critical care.

 2. Recklessly Tap-Dancing in a Constitutional Minefield

What is the constitutional minefield that this would create? It has many layers.

If Tom, the evicted critical care patient, dies as a result, it would not be surprising for his family to consider suing the doctor, the hospital and the Ford Government for this death. We cannot and absolutely don’t here offer legal advice to anyone. However, we can foresee some of the arguments that might be made on Tom’s behalf.

To defend themselves, the doctor and hospital could be expected to point to the Government’s January 13, 2021 triage protocol and say they were following this direction. As for withdrawing critical care from Tom, a patient who is in the middle of receiving critical care, the doctor, hospital and Government could also be expected to point to any regulation or executive order that the Government might pass in an attempt to suspend the Health Care Consent Act, and say that they were following it when they took away critical care from Tom, over his objection.

We now arrive at the constitutional minefield. Here are just some of the points that Tom’s family might present. A court would have to rule on these arguments and the responses or defences that the doctor, hospital and/or Government might present. Each of these arguments, if successful, might be sufficient to knock out the defence.

  1. Tom’s family might well argue that the Government cannot give directions on who lives and who dies during critical care triage by simply sending hospitals a memo, which is all the January 13, 2021 triage protocol is. The Government would have to show that those sending the memo had the legal mandate to make such decisions and give such life-and-death directions by simply sending a memo like the January 13, 2021 triage protocol.
  1. If the Ford Government did not approve the January 13, 2021 triage protocol, Tom’s family might argue that the Government has an even more uphill argument if it wants to argue that the January 13, 2021 triage protocol was somehow authorized by law. This is because the Ford Government had told media that it did not approve the January 13, 2021 triage protocol. This is so even though it states in the document that it was approved by the Ontario Critical Care COVID Command Centre. It was the Ford Government that set up the Ontario Critical Care COVID Command Centre.
  1. If Cabinet passed a regulation or order suspending the Health Care Consent Act, Tom’s family can be expected to argue that the Ford Government’s Cabinet did not have the power to make such a regulation or executive order. To make a regulation or like order, it would be practically necessary for the Government, the doctors and/or the hospital to show that the Legislature gave Cabinet the power to pass such a regulation or order.

Tom’s family might argue that a piece of legislation, supposedly conferring this power on Cabinet, is itself unconstitutional. If so, then Cabinet cannot use it to override the Health Care Consent Act.

If that argument fails, Tom’s family could argue that the piece of legislation supposedly conferring that power on Cabinet, should be interpreted narrowly, and that so interpreted, it did not authorize the Cabinet to make the regulation or order on which the Government, doctors and hospital rely.

This can be a complicated legal issue. We do not here review the legislative options that the Government might try to rely on to authorize such a regulation or executive order. However, Tom’s family could be expected to argue that the Legislature cannot simply give Cabinet carte blanche to pass any regulation it wants on any topic it wants.

Among other things, Tom’s family could urge the Court to interprete narrowly any legislation that gives Cabinet power to make regulations and orders. They could well argue that before a court agrees that legislation gives Cabinet the power to pass a drastic relation or issue a drastic order that suspends the Health Care Consent Act or that otherwise infringes Tom’s constitutional rights guaranteed by the Charter of Rights, that legislation must make it clear that the Legislature meant to give Cabinet such a drastic power. Tom’s family can also be expected to argue that any legislation, supposedly giving Cabinet such power, should be interpreted strictly and restrictively. The Legislature should not be able to pass the buck to Cabinet on so serious a topic. The Legislature must debate issues in public, with the Opposition present and participating. In sharp contrast, the Cabinet meets in secret, with no Opposition present.

Put another way, Tom’s family could argue that when a court interpretes legislation that gives power to Cabinet to make regulations, it should be presumed that this did not include a power to infringe the constitutional rights of medical patients, guaranteed by the Canadian Charter of Rights and Freedoms, or other basic rights to consent to medical decisions about their own health care, unless the Legislature said so in the clearest of language. For example, the family might well be expected to argue that the Legislature did not intend to delegate to Cabinet the power to grant exemptions from the Health Care Consent Act, if this will involve discrimination against patients with disabilities. The AODA Alliance and the ARCH Disability Law Centre have shown how the January 13, 2021 triage protocol presents the danger of disability discrimination. All that the Government’s defenders who have spoken in public have said in its defence is to say that the January 13, 2021 triage protocol states that doctors should not discriminate based on grounds like disability. However, that protocol goes on to tell doctors to use the Clinical Frailty Scale for some patients, when deciding if they should be refused or evicted from critical care. We have shown that this Scale is replete with disability discrimination. The protocol’s earlier statement to doctors not to discriminate based on disability does not cure or reduce the Clinical frailty Scale’s disability discrimination.

As well, the January 13, 2021 triage protocol does not provide a critical care patient with any due process, such as a right of appeal, if doctors decide to refuse them critical care, or to evict a critical care patient from the Intensive Care Unit. Tom’s family could well try to argue that the Legislature should not be taken as giving Cabinet the power to suspend the Health Care Consent Act without any due process for patients, unless the Legislature said so very explicitly.

Similarly, Tom’s family can be expected to argue that a court should be very reluctant to interprete legislation as giving Cabinet the power to make a regulation or other order that endangers a medical patient’s right to life, which is spelled out in section 7 of the Charter of Rights. Tom’s family may contend that this right is at stake when talking about refusing a patient critical care they need, or unplugging them from critical care they need and are already receiving.

  1. If any of those arguments by Tom’s family succeed, then the doctors, hospital and Government could be in hot water. There is even more to this minefield, even if it were assumed that those arguments by Tom’s patient’s family might not succeed.

Tom’s family could try to argue that Cabinet’s regulation or order or the doctors or hospitals actions under them and under the January 13, 2021 triage protocol nevertheless violate tom’s constitutional rights under the Charter of Rights. They would want to argue that in Eldrige v. B.C., Canada’s leading ruling on the Charter’s guarantee of equality to people with disabilities, the Supreme Court of Canada said that a patient can invoke the Charter to challenge the delivery of health care services in a hospital (there, the failure to provide a Sign Language interpreter to a deaf emergency room patient).

For example, Tom’s family could try to argue that the treatment of Tom by the doctors, hospital and/or the Government included disability discrimination contrary to Charter s. 15 (equality without discrimination on grounds like disability) and/or it denied the patient fair procedure in the triage process as guaranteed by Charter s. 7. (The right to not be deprived of one’s life without fulfilling the principles of fundamental justice). If a court was persuaded that any of these Charter rights were violated, the Government might try to argue that Charter s. 1 saves the day for them. Section 1 of the Charter provides:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Government would have to argue that a suspension of the Health Care Consent Act was justified due to the COVID-19 emergency. However, there are many arguments that the courts will have to consider. It will not be an easy task. It is the Government that must prove that s. 1 justifies government action.

Tom’s family might argue that by February 2021, this emergency was neither sudden nor unexpected. The COVID-19 pandemic had raged for almost a year. The Government knew in February 2020 that it should prepare for the eventuality of critical care triage. Yet as the AODA Alliance website amply shows, the Government has refused to embark on a proper public debate and discussion of this issue. It has dealt with it via secret triage protocols, closed door meetings, and a protracted failure to directly consult the public (including people with disabilities).

We and others repeatedly alerted the Government to the pitfalls in its triage planning, sought a chance to deal directly with the Government, and offered constructive solutions. This is an eventuality for which the Government could have been prepared with less drastic measures, had it properly planned for it.

  1. Even if it were assumed that Tom’s family failed on each and every one of the preceding arguments, still more dangers await the Government in this constitutional minefield. Tom’s family might be expected to argue that Ontario cannot authorize a doctor or hospital to withdraw critical care from a patient who needs it and who is receiving it, over the objection of the patient or their substitute decision-maker, without running afoul of the Criminal Code’s provisions on culpable homicide. His family may choose to argue that under Canada’s Constitution, it is Canada’s Parliament, and not a provincial Legislature or Government, that decides what constitutes a criminal homicide. If unplugging a patient from a ventilator or otherwise evicting them from critical care that they need without their consent is criminal conduct in some situations, Tom’s family may argue that Ontario’s Legislature, Cabinet or Government cannot legalize it.

 3. There are Ready Solutions Open to the Ford Government

What is the solution to this minefield in which Premier Doug Ford could soon find himself dangerously tap-dancing? It includes steps like these:

  1. Stop dealing with the critical care triage issue in secret, behind closed doors. Immediately embark on a public discussion of it. Don’t continue to hide behind the Government-appointed external, advisory Bioethics Table. Stop using that group as human shields. Talk directly to those of us in society, like disability advocates, who have ideas to share. Answer our seven unanswered letters on the critical care triage topic.
  1. Take off the table the option of suspending the Health Care Consent Act and letting doctors withdraw life-saving critical care from a patient who needs it and is receiving it.
  1. Ensure that whatever the Government does in this area will be properly authorized by legislation. If legislation is needed, this should be immediately introduced into the Legislature for debate. Public hearings should be held. It should not be rammed through without a proper chance for public input.
  1. Ensure that whatever the Government does regarding triage is fully constitutional. Don’t put families in the position of having to fight the Government after the fact, and after the devastating trauma of having to lose a family member.
  1. Implement an immediate, public, aggressive strategy to reallocate enough health care workers to ensure that Ontario has enough capacity to deliver effective critical care to all who need it, even in the face of further surges in demand due to COVID-19. That could eliminate any need for triage of critical care.

The AODA Alliance is standing by and ready to help.

4. Learn More About Ontario’s Controversial Critical care Triage Issue

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.



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


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

January 29, 2021

SUMMARY

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

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

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

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

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

MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over 2.6 million Ontarians with disabilities deserve better.

3. The Onley Report’s Summary of Its Recommendations

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

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

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

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

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

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

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

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

9. Provide tax incentives for accessibility retrofits to buildings.

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

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

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

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

January 29, 2021

            SUMMARY

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

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

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

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

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

            MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

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

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

Lead by example.

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

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

Define “accessibility”.

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

Update the definition of “disability”.

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

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

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

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

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

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

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

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

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

Offer tax breaks to boost accessibility in new residential housing.

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

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

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

Issue clear, in-depth guidelines interpreting accessibility standards.

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

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

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



Source link

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


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

January 26, 2021

SUMMARY

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

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

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

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

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

For more background on this issue, check out:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

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

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

MORE DETAILS

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

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

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

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

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

That Clinical Frailty Scale requires a doctor to rate whether the patient can perform a list of activities of daily living without assistance, namely dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The Clinical Frailty Scale was not designed to be used to decide who lives and who dies during critical care triage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. During our summer virtual meetings with the Government’s Bioethics Table, we were asked to give ideas on what kinds of due process should be included in the triage protocol, that are sensitive to the time pressures during such triage. We did so in our August 30, 2020 written submission to the Bioethics Table. We set the relevant part of those submissions out below. They were posted on line last summer, and shared with the Ford Government and not just its Bioethics Table.

3. After that, the Bioethics Table included some, but not all of our due process recommendations in its September 11, 2020 report to the Ford Government. The Government kept that report secret for three months, forcing us to vigourously advocate for its public release. We set out the relevant parts of that report below that address due process for patients.

4. On November 13, 2020, the Government or its Ontario Critical Care COVID Command Centre sent a secret new draft triage protocol to Ontario hospitals. We have not seen it. However, we know from a later undated letter from Dr. Andrew Baker, a member of the Ontario Critical Care COVID Command Centre, to Ontario hospitals that that draft protocol included some sort of right of appeal within the health care system for triage patients who are refused critical care they need. That letter listed the following as some of the things that have been removed from the draft protocol that was earlier circulated to hospitals on November 13, 2020:

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

5. We have learned that the Bioethics Table later delivered a secret revised report to the Government on critical care triage on January 12, 2021. We do not know what it said about due process for patients or anything else.

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

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

The AODA Alliance’s August 30, 2020 written submissions to the Government’s Bioethics Table included:
The First Issue: The Revised Draft Triage Protocol is Seriously Lacking in Due Process for All Patients

1. The Bottom Line

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

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

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

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

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

3. Right to Early Notice

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

4. Right to Disability Accommodation in the Triage Process

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

5. Who Should Make the Triage Decision

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

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

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

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

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

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

6. Right to Input Into Triage Decision

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

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

7. Right to Appeal a Denial of Needed Critical Care

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

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

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

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

a) Information about the availability of an appeal and how to launch an appeal should be widely available and well publicized, within a hospital.

b) The appeal process must be very fast.

c) The appeal process should rapidly get right to the substantive critical care issues, without being distracted by extraneous considerations. This is needed to minimize the time that the process takes and the need to enable medical staff to spend their time treating patients.

d) A patient or their family/support people should be able to quickly and easily launch an appeal by sending in an email, placing a phone call, or verbally advising a person in charge e.g. a charge nurse in an emergency room. Whoever receives the written or oral notification that the appeal is being launched should be required to immediately communicate it to a central hub at the hospital.

e) To speed up this process, to the extent possible, virtual meetings should be used to conduct the parts of the appeal that do not require in-person contact.

f) On an appeal being launched, a hospital staff person who had no involvement in the triage decision should immediately be assigned to manage the appeal process, and to be the patient/family’s/support people’s primary contact.

g) Immediately upon launching an appeal, an independent person either within the hospital or on stand-by at Ontario Health should review the initial triage team’s documentation of their triage decision. If the documentation reveals any possible errors, the triage team that made the decision should be required to reconsider its decision afresh.

h) If, after that review, the triage team sticks by its decision to deny critical care to the patient, a second triage team, either in the hospital or elsewhere, should be appointed to immediately perform an independent clinical care triage assessment of the patient’s case. The second triage team should have the same required qualifications and training on the triage process as did the first triage team. The second triage team should, of course, include no members from the first triage team.

i) The second triage team should start the assessment from scratch, and should not be provided any of the assessment decision ratings or deliberations of the first triage team. The members of the second triage team should not communicate about this case with members of the first triage team before or while making their assessment.

j) The patient should get the benefit of the most favourable assessment, as between the first and second triage teams. If, after this second team’s assessment, the patient is still denied critical care, they should have an opportunity to have a rapid appeal/review by an independent court or tribunal. New legislation or regulations may be needed to spell this out. We do not have time to specify to whom this appeal should go. One option worth considering is the Consent and Capacity Board (CCB). Another option to consider is a judge of the Superior Court of Justice. A short list of judges from that court could be designated to be on stand-by for cases coming to them, if it is decided that a judge should hear these cases.

k) Whether this final appeal is to a judge or to the CCB or some other body, to expedite this process, a panel of qualified lawyer-mediators should be designated to be on standby to assist that judge or tribunal e.g. to quickly gather, organize and disclose to the parties and the appeal judge or tribunal all the relevant information from the hospital and the two triage teams that had reviewed the case. Because such appeals must happen extremely quickly, it would be important for the patient, family/support people and hospital to have that emergency assistance.

l) To ensure that the playing field is level for all patients, the Government should direct that Legal Aid Ontario is required to provide free legal representation to any patient invoking this appeal process after being denied critical care. A panel of Legal Aid-funded lawyers should be available on stand-by for emergency engagement if needed.

8. Accountability for Triage Decisions

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

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

a) the number of cases and related medical decisions;

b) key demographic data such as racialized and disability status; and

c) number of decisions appealed and whether the appeal resulted in a refusal or offer of critical care.

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

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

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

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

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

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

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

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

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

In the context of a major surge, there may be occasions where there is little clinical evidence to guide triage decisions (i.e. to distinguish between multiple critically ill patients) on the basis of predicted short term mortality, or there are irreconcilable differences of opinion between physicians regarding a patient’s eligibility for critical care at a particular level.
In such contexts of uncertainty, triage decisions must appeal to procedural fairness.
Randomization offers a procedurally fair process of decision-making that mitigates against the potential of explicit or unconscious bias and demonstrates the value of humility when uncertainty is high. Random selection also has other advantages as a decision-making strategy in the context of an overwhelming surge of critically ill patients:




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

January 26, 2021

            SUMMARY

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

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

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

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

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

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

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

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

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

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

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

That Clinical Frailty Scale requires a doctor to rate whether the patient can perform a list of activities of daily living without assistance, namely dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The Clinical Frailty Scale was not designed to be used to decide who lives and who dies during critical care triage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. The Bottom Line

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

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

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

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

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

  1. Right to Early Notice

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

  1. Right to Disability Accommodation in the Triage Process

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

  1. Who Should Make the Triage Decision

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

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

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

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

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

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

  1. Right to Input Into Triage Decision

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

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

  1. Right to Appeal a Denial of Needed Critical Care

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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More Media Coverage of Danger that the Ford Government’s Critical Medical Care Triage Poses for Ontarians with disabilities


But the Government Claims Protocol Does Not Come From the Government So Does The Government Believe It Comes From Some Rogue Group Issuing Directions to Ontario’s Hospitals?

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: aodafee[email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

January 20, 2021

SUMMARY

Finally, the Ford Government’s deeply worrisome plans for rationing or triage of life-saving critical medical care are starting to get more media attention, including some focus on concerns from the disability community that those plans create the real danger of disability discrimination against some patients with disabilities. We here give you some examples, and our feedback. In most of these articles, the AODA Alliance was quoted.

As the following shows, the Government repeatedly claims the January 13, 2021 triage protocol is not a critical care triage protocol, and that it does not come from the Government. Yet a look at reveals that it certainly is a critical care triage protocol, authorized by the Government’s own Ontario Critical Care COVID Command Centre. If it doesn’t come from the Government, does it come from some rogue individual or group appointing themselves to dictate who lives and who dies if critical care must be triaged? What happened to the Ford Government’s promised openness and transparency when it comes to its response to the COVID-19 pandemic?

1. On Thursday, January 14, 2021, CBC TV’s flagship national news program The National included, as its second news item, a report on plans for triage of critical care in Quebec and Ontario. The story included two quotations from AODA Alliance Chair David Lepofsky, identifying some of our major concerns on this front. You can watch it on Youtube at https://www.youtube.com/watch?v=_tySXRTHIGQ&feature=youtu.be We have also posted it with captioning at https://youtu.be/-LRyewJOKNQ

2. On Tuesday, January 19, 2021, Toronto’s Zoomer Radio 740 Fight Back program hosted by Libby Znaimer included a half hour radio interview on the critical care triage protocol issue with AODA Alliance Chair David Lepofsky and Bioethicist Kerry Bowman. The audio of this is available as a podcast at https://zoomerradio.ca/podcasts/fight-back-on-zoomer-radio-podcast/the-provinces-directive-for-life-saving-care-january-19-2021/ 3. QP Briefing, a very influential publication of the Toronto star based at Queen’s Park, included an article dated January 18, 2021 on disability concerns with the January 13, 2021 triage protocol. That article reports, among other things:
But the government said it’s only a draft, and hasn’t been approved or endorsed by the Ministry of Health.
To the contrary, the January 13, 2021 triage protocol states that it is approved by the Ontario Critical Care COVID Command Centre. This appears to be the Government-designated body which is making the key decisions in this area. The Government has not told us who is on it, or what it’s mandate is. We’ve asked weeks ago!

The Government has not let us meet with the Ontario Critical Care COVID Command Centre. This body is, as far as we can tell, doing its life-and-death decision-making behind closed doors, with no public accountability. There is no showing that it has legal authority to make life-and-death policy for Ontario.
This news report gives a rare response on this issue from the Ford Government one that is deeply disturbing. The article states:

A source in Elliott’s office said the document “was not issued by the province and is guidance for the sector by the sector.”
The Ministry of Health said the province’s Bioethics Table has created separate guidelines that were “developed through rigorous review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, as well as community stakeholders, including disability rights organizations. Recent revisions include a more robust human rights and equity framing of the central issues,” ministry spoksperson David Jensen said in an email.
The document in question “has not been activated and has been released only for planning purposes to prepare for the possibility of a major surge in care, as an option of last resort, to be invoked only when all existing local and regional critical care resources have been used, all reasonable attempts have been made to move patients to or resources from areas with greater critical care resource availability, and only for as long as the major surge lasts,” Jensen said.
He said the ministry expects the Bioethics Table to keep consulting with stakeholders on the triage guidance.
Elliott’s office directed further questions to Dr. Andrew Baker, the critical care chief at St. Michael’s Hospital and incident commander of the Ontario Critical Care COVID-19 Command Centre. Baker did not respond to a request for comment.
As for the Government’s misleading claims of ongoing consultations, the Government-appointed external Bioethics Table has had no contact with us or, to our knowledge, with others in the disability community advocating on this issue, since its rushed December 17, 220 roundtable. Since then, the following all took place in secret, with no consultation of us, and no disclosure to us:
a) On January 6, 2021, the Government’s internal Ontario Critical Care COVID Command Centre secretly approved the all-important checklist for doctors doing triage, replete with deployment of the disability-discriminatory Clinical Frailty Scale.

b) On January 12, 2021, the external advisory Bioethics Table sent the Government a new revised secret report on critical care triage. We have not seen it. Neither the Government nor the Government’s advisory Bioethics Table told us about it.

c) On January 13, 2021, just as the Bioethics Table’s Dr. James Downar was telling The Agenda with Steve Paikin and all Ontarians that they are now consulting on this issue, the Government’s internal Ontario Critical Care COVID Command Centre secretly approved the January 13, 2021 triage protocol which was that day sent to all Ontario hospitals.

If the January 13, 2021 triage protocol was not sent to Ontario hospitals by the Government or on its behalf, who was the rogue person or group that has been sending it around the province? Why hasn’t the Government rescinded it, just as it belatedly rescinded the earlier March 28, 2020 critical care triage protocol?

Moreover, if this was not circulated by or on behalf of the Ford Government, that means there is no authoritative protocol for critical care triage in place. With the need for triage now close according to the Bioethics Table’s Dr. James Downar, it means doctors are left with no directions at all. This further risks each triage doctor being a law unto themselves, further endangering people with disabilities.

3. A January 18, 2021 article by the Canadian Press’s Liam Casey was posted by various news outlets. The post of it in the January 18, 2021 St. Catherins Standard is set out below. That article includes this:

Dr. Andrew Baker, the head of the critical care COVID-19 command centre and director of critical care at St. Michael’s Hospital, said the triage protocol contains information and tools that are a standard way for physicians to conduct an assessment for a patient upon arrival at an emergency department.

They were shared with the critical care community as background only and to ensure a common approach across the sector, so physicians and other health professional staff can learn how to quickly operationalize an emergency standard of care for admission to critical care, if ever needed, he said.

Baker said an emergency standard of care is not in place, but will be enacted if needed.

This furthers the confusing double-talk emanating from the Government on this issue. The January 13, 2021 triage protocol embodies serious dangers of disability discrimination, as the AODA Alliance’s unanswered January 18, 2021 letter to Ontario Health Minister Christine Elliott. By circulating this document, the Government or its representatives are embedding improper discriminatory triage practices in the front lines of our health care system, to be ready for deployment should the COVID-19 pandemic require critical care triage. This must be rectified now!

4. In a detailed January 18, 2021 report on CBC News online, the Government again tried to distance itself from the January 13, 2021 triage protocol without withdrawing it or offering to speak to any of us in the public about it. This article includes no feedback on concerns from the disability community, such as those from the AODA Alliance. That article included this:

This morning, the Ontario NDP released a document they say is the province’s triage protocol. However, a spokesperson for the Minister of Health later said in an email to CBC News Monday that it is not a triage protocol but rather “guidance that originated from experts in the sector, for use by the sector.”

Dated Jan. 13, the 32-page document outlines the details and critical elements of the triage process should there be a major surge in COVID-19 patients requiring hospital care.

The documents say this should be considered only “as an option of last resort,” prioritizes care for those “with the greatest likelihood of survival.” It emphasizes the need for protection of individual human rights, non-discriminatory decision making and accountability.

The spokesperson said as of Monday, nothing has been issued or approved by the Ministry of Health.

“The expectation of the Ministry of Health is for the Bioethics Table to continue its engagement in consultations and discussions with various stakeholder groups,” the statement from the ministry reads.

In a news release, the NDP said the document “shows that the crisis in hospitals is out of control” while accusing Premier Doug Ford and his government of trying to keep it out of public view.

“Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret,” the NDP said.

5. In an earlier January 15, 2021 article on TVO. org Journalist Sarah Trick gave a good background to this issue pre-dating our chance to receive and review the leaked January 13, 2021 triage protocol. This otherwise excellent article inaccurately states that the Ford Government’s earlier March 28, 2020 triage protocol was circulated to hospitals and community organizations for their feedback. the Government had it circulated to hospitals for feedback but most certainly did not circulate it to community groups for their feedback. It only reached the disability community last spring due to it being leaked to them.

In addition to the preceding news coverage, we have witnessed the following important step forward this week on this issue. On Monday, January 18, 2021, NDP Leader Andrea Horwath and NDP Disabilities critic Joel Harden released a helpful strong public statement about the January 13, 2021 triage protocol. It condemned that protocol, and explicitly endorsed the AODA Alliance’s concerns about it.

If you want more background on this issue, check out the following:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

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

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

QP Briefing January 18, 2021
Disability advocates sound alarm over draft triage guidelines Jack Hauen
As COVID-19 patients pack Ontario hospitals, disability advocates say they have serious concerns over guidance for who should be prioritized for lifesaving care.
Adocumentleaked by physicians, dated Jan. 13, 2021, outlines a triage strategy for hospitals if there aren’t enough ventilators for everyone who needs one. The AODA Alliance, an advocacy group for people with disabilities, said parts of the guidance will prioritize lifesaving equipment for able-bodied people. But the government said it’s only a draft, and hasn’t been approved or endorsed by the Ministry of Health.
Doctors have spoken to the media about the overwhelmingstressof planning to ration acute care a situation that was practically unthinkable over the summer, but as cases have skyrocketed in the second wave, has become increasingly plausible.
The AODA Alliance said it’s concerned about the inclusion of the “clinical frailty scale,” which outlines how dependent people are on others to live their lives; and a patient’s 12-month likely survival as triage criteria.
AODA Alliance ChairDavid Lepofskysaid the protocol also isn’t clear on whether doctors should withdraw critical care to make room for someone else. The Ministry of Health said the guidance does not involve withdrawal of care, but didn’t say whether care could be withdrawn based on other guidelines.
“Under the protocol, each triage doctor can end up being a law unto themselves. The protocol’s references to respecting human rights do not eliminate serious concerns about its authorizing disability discrimination,” Lepofsky said.
People with disabilities have been raising similar concernssince the beginning of the pandemic.
The Alliance also called for triage protocols to be enshrined in law, not a memo to hospitals, and slammed the Tories for keeping it from the public.
The Ford government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor, Lepofsky said. The Ford government must now rescind and fix this discriminatory new triage protocol, and directly consult the public on this issue.”
Lepofsky wrote to Health MinisterChristine Elliotton Monday asking her to fix the issues raised by the AODA Alliance.
“The Ontario government needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged,” he wrote.
Joel Harden, the NDP critic for seniors, accessibility and persons with disabilities, said he agrees with the AODA’s concerns.
This shows that Ford knows how dire the situation is. And it leaves us all to ask why time and again, he keeps choosing half-measures, said Harden. There are people now forced to live in fear, believing that they may not get the care they deserve if they end up in the ICU.”
A source in Elliott’s office said the document “was not issued by the province and is guidance for the sector by the sector.”
The Ministry of Health said the province’s Bioethics Table has created separate guidelines that were “developed through rigorous review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, as well as community stakeholders, including disability rights organizations. Recent revisions include a more robust human rights and equity framing of the central issues,” ministry spokspersonDavid Jensensaid in an email.
The document in question “has not been activated and has been released only for planning purposes to prepare for the possibility of a major surge in care, as an option of last resort, to be invoked only when all existing local and regional critical care resources have been used, all reasonable attempts have been made to move patients to or resources from areas with greater critical care resource availability, and only for as long as the major surge lasts,” Jensen said.
He said the ministry expects the Bioethics Table to keep consulting with stakeholders on the triage guidance.
Elliott’s office directed further questions to Dr.Andrew Baker, the critical care chief at St. Michael’s Hospital and incident commander of the Ontario Critical Care COVID-19 Command Centre. Baker did not respond to a request for comment.
NDP LeaderAndrea Horwathsaid the guidance illustrates the “heart-wrenching choices” on the horizon if the government doesn’t add stronger lockdown measures like paid sick days, more aid for long-term care and more testing in workplaces and schools.
People that are loved dearly people that need medical help the most could be left to die if we do not make the choice to throw everything we’ve got at this virus, she said in a statement.
Horwath agreed with Lepofsky that the document should have been made public by the government.
This article has corrected a Ministry of Health error that stated the document dated Jan. 13 was created by the province’s Bioethics Table. It is in fact based on guidance from the Critical Care Command Centre.

St. Catharines Standard January 18, 2021

Originally posted at https://www.stcatharinesstandard.ca/ts/news/canada/2021/01/18/ontario-patients-to-be-ranked-for-life-saving-care-should-icus-become-full.html Ontario patients to be ranked for life-saving care should ICUs become full

By Liam Casey The Canadian Press
Mon., Jan. 18, 2021

Hospitals in Ontario have received a much-anticipated document that lays out the criteria to be used if intensive care units fill up and medical resources are scarce.

According to the document, titled Adult Critical Care Clinical Emergency Standard of Care for Major Surge and prepared by the province’s critical care COVID-19 command centre – patients will be scored by doctors on a short-term mortality risk assessment.

Aim to prioritize those patients who are most likely to survive their critical illness, the document notes.

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

It lists three levels of critical care triage:

Level 1 triage deprioritizes critical care resources for patients with a predicted mortality greater than 80 per cent, the document notes.

Level 2 triage deprioritizes critical care resources for patients with a predicted mortality (greater than) 50 per cent.

At Level 3 triage, patients with predicted mortality of 30 per cent – or a 70 per cent chance of surviving beyond a year – will not receive critical care. At this stage, patients who have suffered a cardiac arrest will be deprioritized for critical care, as their predicted mortality is greater than 30 per cent.

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

The protocol, dated Jan. 13, says there are three steps on the road to critical care triage:

Step 1 says hospitals should build surge capacity.

In Step 2, if demand still exceeds capacity, the hospital will adjust the type of care being provided to focus on key critical care interventions, which include basic modes of ventilation.

Step 3 is the initiation of critical care triage. Once that process kicks in, all requests for ICU admission are managed by an administrator on call who supports the bedside clinicians.

At the moment, there are 416 patients with COVID-19 in ICUs in Ontario, which has a total of 1,800 total ICU beds.

Modelling released by the province last week show that about 700 ICU beds will be used by COVID-19 patients by the first week February.

Dr. Andrew Baker, the head of the critical care COVID-19 command centre and director of critical care at St. Michael’s Hospital, said the triage protocol contains information and tools that are a standard way for physicians to conduct an assessment for a patient upon arrival at an emergency department.

They were shared with the critical care community as background only and to ensure a common approach across the sector, so physicians and other health professional staff can learn how to quickly operationalize an emergency standard of care for admission to critical care, if ever needed, he said.

Baker said an emergency standard of care is not in place, but will be enacted if needed.

He said there is an extensive, sophisticated, provincewide effort to transfer patients out of hospitals that are at capacity.

Dr. Michael Warner, the medical director of critical care at Michael Garron Hospital in Toronto, said the hospital is running at 105 per cent capacity, but has cancelled surgeries in order to keep some spots open in the ICU.

I sincerely hope we never need to use this because it is terrible for patients, terrible for their families, causes moral distress for health-care workers, and it’s something that we should do everything possible to avoid having to implement, Warner said. David Lepofsky, the chairman of Accessibility for Ontarians with Disabilities Act Alliance, said the triage guidelines are discriminatory.

He pointed to the clinical frailty scale, a prognostic tool doctors use in cases of progressive illnesses to assess a patient’s general deterioration over time.

This is disability-based discrimination and that’s against the law in the Constitution, Lepofsky said.

January 18, 2021 CBC News Online

Originally posted at https://www.cbc.ca/news/canada/toronto/covid-19-ontario-january-18-2021-vaughan-1.5877320Province to open new hospital to ease pressure as Ontario reports 2,578 new COVID-19 cases

The provincial government is opening a new hospital in Vaughan to help relieve pressure on other facilities in the Greater Toronto Area.

The Cortellucci Vaughan Hospital was originally scheduled to open in early February as the first brand new hospital not a replacement of an older facility or a merger with an existing facility in Ontario in almost three decades. Premier Doug Ford made the announcement at a Monday afternoon news conference, saying it would open in “a few short weeks.”

“It’s like reinforcements coming over the hill,” Ford said, adding that the province is also adding 500 additional surge capacity hospital beds in Toronto, Durham, Kingston and Ottawa.

Health Minister Christine Elliott also said Monday that once the situation with COVID-19 has stabilized in the province, the hospital will open as originally planned.

“The idea is this hospital is going to be used … in order to take the load off of some other hospitals that are experiencing capacity challenges.” Elliott said.

The hospital will accept both COVID-19 and non-COVID-19 patients “based on the system needs during this surge,” a spokesperson for Mackenzie Health said in a statement to CBC Toronto.

The news comes as Ontario reported 2,578 additional cases of COVID-19 on Monday, as the number of patients with the illness who required a ventilator to breathe climbed above 300 for the first time since the pandemic began.

The new cases in today’s update are the fewest logged on a single day in about two and a half weeks. They include 815 in Toronto, 507 in Peel Region, 151 in both York and Niagara regions, and 121 in Hamilton.

New COVID-19 variant cases expected, Yaffe says
“Our health-care system continues to be strained with elevated numbers of people in hospital,” Dr. Barbara Yaffe, Ontario’s associate chief medical officer of health, said on Monday.

Thirty-one new outbreaks were reported as of Monday, Yaffe said, which was slightly lower than Monday of the previous week.

Yaffe said Ontario is reporting 15 new cases of the COVID-19 variant first identified in the United Kingdom, with the most recent case detected in London, Ont. in a patient with no known travel history.

“We do expect more cases to be identified in the weeks to follow as there is evidence of community transmission,” Yaffe added.

She said the data indicated that the new strain is 56 per cent more easily transmissible in comparison to other variants.

Other public health units that saw double-digit increases were:

Windsor-Essex: 97
Ottawa: 92
Waterloo region: 85
Halton Region: 79
Durham Region: 76
Middlesex-London: 67
Simcoe Muskoka: 65
Lambton: 52
Wellington-Dufferin-Guelph: 51
Eastern Ontario: 36
Southwestern: 31
Chatham-Kent: 29
Huron Perth: 15
Haldimand-Norfolk: 13
Brant County: 12
(Note: All of the figures used in this story are found on the Ministry of Health’s COVID-19 dashboard or in its Daily Epidemiologic Summary. The number of cases for any region may differ from what is reported by the local public health unit, because local units report figures at different times.)

The additional infections come as the province’s labs processed just 40,301 test samples for the novel coronavirus tens of thousands fewer than there is capacity for in the system and reported a test positivity rate of 6.6 per cent.

The seven-day average of new daily cases fell to 3,035. It reached a high of 3,555 on January 11.

Yaffe said Monday’s figures may have been low due to the number of tests processed Sunday, which was the lowest since Jan. 5.

Ontario’s Chief Medical Officer of Health Dr. David Williams said the current test positivity rate shows improvement from previous weeks when it would spike following weekends.

“The numbers are dropping, I take that as a sign that Ontarians are doing what we’re supposed to be doing,” Williams said on Monday.

But Williams said the province must cut its daily COVID-19 case counts to below 1,000 before lockdown measures can be lifted.

He called the goal “achievable” and said the last time the province saw similar daily case counts was late October.

Williams said he would also like to see the number of COVID-19 patients in intensive care units drop to 150 before lifting any restrictions.

Another 2,826 cases were marked resolved in today’s report. There are now 28,621 confirmed, active infections provincewide. The number of resolved cases have outpaced new cases on six of the last seven days in Ontario.

There were 1,571 total patients with COVID-19 in Ontario’s hospitals. Of those, 394 were being treated in intensive care units and 303 were on ventilators.

Revised projections released last week by the province suggested that hospitals, especially those throughout southern Ontario, risk being overwhelmed by COVID-19 patients in the coming weeks. The influx could result in doctors having to triage emergency patients, running the risk that some will not get a hospital bed when needed.

Ontario seniors ‘living in fear’ of COVID-19 feel forgotten in vaccine rollout plan
This morning, the Ontario NDP released a document they say is the province’s triage protocol. However, a spokesperson for the Minister of Health later said in an email to CBC News Monday that it is not a triage protocol but rather “guidance that originated from experts in the sector, for use by the sector.”

Dated Jan. 13, the 32-page document outlines the details and critical elements of the triage process should there be a major surge in COVID-19 patients requiring hospital care.

The documents say this should be considered only “as an option of last resort,” prioritizes care for those “with the greatest likelihood of survival.” It emphasizes the need for protection of individual human rights, non-discriminatory decision making and accountability.

The spokesperson said as of Monday, nothing has been issued or approved by the Ministry of Health.

“The expectation of the Ministry of Health is for the Bioethics Table to continue its engagement in consultations and discussions with various stakeholder groups,” the statement from the ministry reads.

In a news release, the NDP said the document “shows that the crisis in hospitals is out of control” while accusing Premier Doug Ford and his government of trying to keep it out of public view.

“Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret,” the NDP said.

Public health units also reported another 24 deaths of people with the illness, pushing the official toll to 5,433.

Vaccine clinic opens at Metro Toronto Convention Centre
A clinic dedicated to administering COVID-19 vaccines opened in a Toronto convention centre on Monday.

The same day, city officials announced the clinic will have to be paused as of Friday, due to a lack of access to vaccines.

The clinic at the Metro Toronto Convention Centre, which is in the downtown core, aims to vaccinate 250 people per day, but the city noted that is entirely dependent upon vaccine supply.

City officials said the “proof-of-concept” clinic will help Ontario’s Ministry of Health test and adjust the setup of immunization clinics in non-hospital settings.

The clinic at the Metro Toronto Convention Centre, which is in the downtown core, aims to vaccinate 250 people per day, but the city noted that it will have to pause the clinic on Friday due to a lack of vaccines. (Evan Mitsui/CBC)
The Ministry of Health said this morning that another 9,691 doses of COVID-19 vaccines were administered in Ontario yesterday. A total of 209,788 shots of vaccine have been given out so far, while 21,752 people have received both doses and are considered fully immunized to the illness.

Pfizer-BioNTech, which manufactures one of the two Health Canada-approved vaccines, announced last week that it’s temporarily delaying international shipments of the shots while it upgrades production facilities in Europe.

Ontario wants everyone vaccinated by early August, general says
The Ontario government has said that will affect the province’s vaccine distribution plan, and some people will see their booster shots delayed by several weeks.

Officials in Hamilton, meanwhile, said the province has directed it to temporarily cease administering the first dose of both the Pfizer-BioNTech and Moderna vaccines to everyone except residents, staff and essential caregivers at long-term care homes and retirement facilities.

A spokeswoman for Health Minister Christine Elliott did not say how many regions of the province had received that directive.

With files from Lucas Powers, Adam Carter and The Canadian Press

TVO Online January 15, 2021

Originally posted at https://www.tvo.org/article/what-happens-to-disabled-ontarians-if-we-run-out-of-icu-beds What happens to disabled Ontarians if we run out of ICU beds?
The government has not publicly shared a triage protocol but what we know about its thinking has experts and advocates worried that Ontarians with disabilities will be denied care By Sarah Trick – Published on Jan 15, 2021
medical workers gather around a hospital bed
Health-care workers with a COVID-19 patient in the ICU at Toronto’s Humber River Hospital on December 9, 2020. (Nathan Denette/CP)

OTTAWA With Ontario’s ICUs closer to being overwhelmed than they’ve ever been and COVID-19 case counts still worrisomely high, one question is becoming ever more urgent: What happens when the province runs out of capacity for critical care?

It is becoming more and more likely that doctors will have to make decisions about who does and does not get critical care in the event of a surge Anthony Dale, the president of the Ontario Hospital Association, recently told TVO.org that, based on Ontario Health projections, by February 24, we will absolutely have exceeded our health system’s capability of caring for COVID patients and all the other people needing other forms of life-saving care.

But there are serious concerns with both the content and the transparency of Ontario’s draft triage protocol, and advocates for people with disabilities say that even with changes incorporated at the behest of the disability community, they are at risk of human-rights violations and being denied care unjustly.

Since the beginning of the COVID-19 pandemic, health-care systems around the world have been concerned about what might happen if the number of patients needing critical care resources, such as ventilators, exceeded the capacity of those resources. In some jurisdictions, such as Los Angeles, this has already happened: first responders have been told to reserve oxygen and not to transport patients to the hospital whom they see as having little chance of survival. Making decisions about how to ration care sometimes referred to as triage is an option of last resort.

We already experience a form of triage whenever we go to the emergency room. In normal times, you’ll see a doctor sooner for chest pain than you would for a sprained ankle. In a mass-casualty event, such as a natural disaster, where there are limited resources in the field, triage is a way to make sure those resources get used effectively. The people most in need get them first.

A pandemic is similar to a mass-casualty event in that there are many people who need treatment and limited treatment resources. But triage in this context, where there are limits on equipment and available staff, involves excluding people from care. You can buy ventilators, James Downar, critical-care physician at the Ottawa Hospital and a member of the province’s bioethics table, told The Agenda this week. You can buy beds, and you can find space in a hospital. It’s a lot harder to get trained and expert staff to manage critically ill patients in a short period of time, and I think that’s more than likely going to be the limitation we hit.

The bioethics table completed a draft version of a triage protocol in March. Although the first version of it was never made public or formally adopted, it was circulated to hospitals and community organizations for their feedback. Immediately, advocates began to sound the alarm, due to clauses in the protocol they saw as discriminatory toward people with disabilities.

One of those advocates was Brian Dunne, executive director at Participation House Support Services in London, whose clients he describes as the people that long-term care won’t take. The clients living there are often medically fragile, and many use ventilators in their daily lives already. Under the original triage protocol, Dunne says, his clients would have been triaged to palliative care despite the fact that their disabilities are stable and they live in the community.

In order to treat its patients, PHSS set up a hospital space right in the building, where it can provide everything a hospital would, short of actual critical care, Dunne says, adding that the space is also used as the facility’s isolation ward for COVID-19 patients, which helps with infection control. We would do everything we can to save them, he says. While he notes that he has not been told his patients can’t come to the hospital, he says there’s generally a reluctance to treat them and an understanding that the hospital is a last resort: There’s kind of a general rule: do not send people here unless they absolutely need to go.

Dunne isn’t the only one concerned. David Lepofsky, chair of the AODA Alliance, a disability consumer advocacy group, says that the first version of the protocol is grounded in a discriminatory approach to people with disabilities. The fact that experts that the government hand-picked in medicine and bioethics could write a protocol ridden with disability discrimination and bias is horribly disturbing, he says. The draft relies on a tool called the Clinical Frailty Scale, which assesses whether a patient can perform certain activities of daily living, such as getting dressed, going to the bathroom, and managing finances. Higher scores indicate greater frailty.

Because people with disabilities often have difficulty performing these tasks without assistance, he says, the use of this scale can result in discrimination against them or in a presumption of frailty when, in fact, the patient is stable. The CFS has not been validated as a triaging tool for younger people, and its was originally used to figure out which kinds of care should be provided to frail elderly patients, not which kinds of care they should be excluded from.

A statement from ARCH Disability Law Centre, an organization that provides legal assistance to people with disabilities, said that this constitutes discrimination against disabled people because it means that a disabled person will always be at a relative disadvantage to those without disabilities.

In effect, the Triage Protocol adopts the absence of a pre-existing disability as a qualification for prioritization in accessing critical care, the briefing note reads. The way in which the Triage Protocol currently operates, a person with a disability is much less likely, if ever, to be prioritized above a person without a disability. This concern is further exacerbated by the fact that a broad categorization of disabilities progressive disabilities is a criteria upon which a patient will be denied access to critical care. (ARCH did not respond to interview requests from TVO.org.)

The Bioethics Table did respond to feedback about this issue Lepofsky describes it as having been very responsive. In later versions of the draft protocol, the most recent of which was completed in December, the application of the CFS is more limited. Downar told The Agenda that it should be applied only to frail patients but did not provide additional explanation. The new version of the protocol, he said, triages based on expected survival time. Although this is an improvement in the eyes of disability advocates since progressive disabilities, such as Alzheimer’s disease, muscular dystrophy, or Parkinson’s disease, are not singled out Lepofsky noted on The Agenda that there is a lot of room for interpretation when it comes to expected survival time.

Perhaps more concerning is the fact that the government has not made the triage protocol public, advocates say. The latest version of the protocol does incorporate feedback from advocates, but, contrary to the table’s recommendations, it has not been widely distributed. (As with many COVID-19 policies, it’s the provincial government that decides whether it will be adopted the bioethics table does not have final say.) But Lepofsky says that the very fact that the first draft protocol circulated for so long could lead to medical professionals inadvertently applying old, discriminatory rules, possibly without even realizing: You can’t hit the clear button on their brains.

When the protocol was being revised, a spokesperson for the Ministry of Health told TVO.org via email that the Ministry of Health has asked the Bioethics Table to ensure that concerns and perspectives of those representing Indigenous people, black and racialized communities, persons with disabilities, and others who may be disproportionately affected by critical care triage due to systemic discrimination, are meaningfully considered and reflected in a revised protocol. (TVO.org has asked for an updated comment but did not hear back by publication time.)

In a series of letters written during the fall of 2020, Ena Chadha, the chair of the Ontario Human Rights Commission, called on the government to release the protocol not only to stakeholders but also to the wider public. The government, she wrote, should ensure that human rights is the primary guiding principle of any protocol and that any protocol should ensure that there is a legislative basis for whatever decisions are being made and have built-in accountability measures.

Chadha says that she recognizes that any protocol will necessarily result in decisions that exclude some people from treatment. I don’t know if we can create a protocol that completely eliminates all differential treatment, but what we could do is develop one that has differential treatment that doesn’t discriminate, so it isn’t based on stereotypes about people with disabilities and the quality of their lives, she says. The discrimination comes in when you’re relying on biases that just assume someone with a disability will not have a good quality of life.
Lepofsky says that is a major concern for those in the disability community, because of the stigma they already face: If a patient is nearing the end of their life, imagine the family being told, Well, what’s their quality of life?’ Studies have shown that disabled people tend to rate their own quality of life higher than medical professionals do.

Lepofsky says he doesn’t blame doctors for the situation. I’m totally sympathetic with them they go into medicine to save lives, not to decide you should not live.’

According to the CBC, hospitals in Ontario began sending out memos Wednesday about training critical-care physicians on triage. As of Friday morning, the protocol had not yet been officially released to the general public.

Time is of the essence, Lepofsky says: If you want to train [health-care staff], you need to train them now. In the States, they’re already doing some rationing. It’s not a hypothetical.

Ontario New Democratic Party January 18, 2021 Media Statement PRESS RELEASE
January 18, 2021
Ford’s secret triage protocols troubling: NDP

HAMILTON AND OTTAWA As hospitals continue to fill beyond capacity, the Ford government has issued a triage protocol to decide who will get life saving ventilator support, and who will not. NDP Leader Andrea Horwath said the protocol shows that the crisis in hospitals is out of control, and that Ford’s attempt to keep it secret is wrong.

This document shows us all that we are on the path to heart-wrenching choices and devastating loss if we don’t make this lockdown count with stronger measures paid sick days, more help in long-term care, and in-workplace and in-school testing, said Horwath. People that are loved dearly people that need medical help the most could be left to die if we do not make the choice to throw everything we’ve got at this virus.

The protocol, obtained by the NDP, is dated Jan. 13. It was wrong to keep it under wraps, said Horwath. Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret.

Joel Harden, NDP critic for Seniors as well as Accessibility and Persons with Disabilities, said he agrees with the Accessibility for Ontarians with Disabilities Act Alliance (AODA), which has also read the protocols, and is raising concerns that some people, including those living with disabilities, could be denied care.

This shows that Ford knows how dire the situation is. And it leaves us all to ask why time and again, he keeps choosing half-measures, said Harden. There are people now forced to live in fear, believing that they may not get the care they deserve if they end up in the ICU.




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We Publicly Post New Secret Ford Government Directions to Ontario Hospitals on How to Decide Who Lives and Who Dies if Life-Saving Critical Care Must Soon Be Triaged


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

January 18, 2021 Toronto: The AODA Alliance has acquired, and here makes public, a copy of what appears to be the Ford Government’s secret new January 13, 2021 triage protocol which directs Ontario hospitals who is to be refused life-saving critical medical care they need, if hospitals must ration or triage critical care. The AODA Alliance today sent Ontario Health Minister Christine Elliott a detailed letter, set out below, asking if the Government disputes that this is the new triage protocol, and spelling out dire concerns with it from the perspective of patients with disabilities.

People with disabilities have been disproportionately exposed to the risk of getting COVID-19, and of suffering its most serious impacts, said David Lepofsky, Chair of the non-partisan AODA Alliance, which campaigns for accessibility for 2.6 million Ontarians with disabilities. Compounding this cruel reality, this secret document shows that some patients with disabilities now risk being de-prioritized in access to life-saving critical care that they will disproportionately need if Ontario hospitals, now near the breaking point, cannot provide life-saving critical medical care to all patients needing it.

Concerns identified include these: the Government cannot direct which patients live or die by simply sending such a memo to hospitals. Any triage protocol must be mandated by valid legislation.

This January 13, 2021 Triage Protocol wrongly directs triage doctors in some situations to use the disability-discriminatory Clinical Frailty Scale (CFS). Also, the protocol’s setting a patient’s 12-month likely survival as the triage criterion further risks disability discrimination. Under the protocol, each triage doctor can end up being a law unto themselves. The protocol’s references to respecting human rights do not eliminate serious concerns about its authorizing disability discrimination.

The January 13, 2021 triage protocol does not provide patients whose life is at stake with basic due process and procedural fairness. It is also unclear on whether it is ever directing doctors to withdraw ongoing critical care from a patient already receiving it to make room for another patient a terrifying prospect.

The Ford Government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor, said Lepofsky. The Ford Government must now rescind and fix this discriminatory new triage protocol, and directly consult the public on this issue. It also needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged.

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

For more background on this issue, check out:
1. The new January 13, 2021 triage protocol which the AODA Alliance received, is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
2. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
3. 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.
4. Panel on the Ontario critical care triage issue on the January 13, 2021 edition of The Agenda with Steve Paikin.

January 18, 2021 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

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

January 18, 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 Government’s Protocol for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We urgently ask you to act now. Please prevent the serious and imminent risk that under your Government’s written directions, Ontarians with disabilities risk being subjected to disability discrimination when they seek access to life-saving critical medical care during the COVID pandemic, if hospitals must ration or triage critical care. The time when triage may have to take place is getting close, according to Dr. James Downar, a member of the Government’s external advisory Bioethics Table (speaking on The Agenda with Steve Paikin on January 13, 2021).

We attach a deeply troubling document we have received, dated January 13, 2021, entitled Adult Critical Care Clinical Emergency Standard of Care for Major Surge. In this letter we call it the Government’s January 13, 2021 Triage Protocol. It appears to be your Government’s most recent directions to Ontario hospitals on how to decide which patients, needing life-saving critical care, should be refused that care, if triage or rationing becomes necessary.

We understand that it was sent to Ontario hospitals on or about January 13, 2021. Your Government did not make it public then or after, nor did it acknowledge publicly that such a document was finalized or sent to hospitals. We only found out about it when a copy of it reached us. We are making it public, with this letter. Does the Government dispute that this is the document which was sent to Ontario hospitals on or about January 13, 2021, or any time this month, by or on behalf of the Ontario Government, Ontario Health, the Ontario Critical Care Command Centre, or any other such emanation connected to the Ontario Government?

Please immediately intervene to address the critical care triage issues we identify in this letter, and to keep your Government’s unkept commitments that during this pandemic, your Government will protect the most vulnerable, and be open and transparent in doing so. Right now, on this issue, your Government is being persistently secretive and is leaving the most vulnerable exposed as the most at risk of being denied life-saving critical care.

We have not had sufficient time to study in detail the January 13, 2021 triage protocol. However, given the subject’s urgency, we alert you to very serious concerns that we have already identified. In summary, we are deeply concerned that the Ontario Government’s approach to the impending possibility that life-saving critical medical care may soon have to be rationed or triaged, and that some patients will die as a result, is severely flawed. It risks unjustified discrimination based on disability. It risks victimizing people with disabilities who already bear COVID-19’s worst hardships. It is not shown to be authorized by law. It does not provide fair due process to patients whose lives are at risk. It is the result of your Government dealing with this issue in secret, talking mainly or exclusively to doctors and bioethicists who have not shown themselves to have an appropriate understanding of the legal rights of people with disabilities.

We summarize our key points as follows:

1. The Government cannot direct which patients live or die by simply sending a memo to hospitals.

2. The new January 13, 2021 Triage Protocol wrongly directs triage doctors to use the disability-discriminatory Clinical Frailty Scale (CFS).

3. Setting a patient’s 12 month likely survival as the triage criterion further risks disability discrimination.

4. References to respecting human rights in the January 13, 2021 triage protocol do not eliminate our documented serious concerns about its authorizing disability discrimination.

5. The January 13, 2021 triage protocol does not provide patients whose life is at stake with basic due process and procedural fairness.

6. The January 13, 2021 triage protocol is unclear on whether it is ever directing doctors to withdraw ongoing critical care from a patient already receiving it to make room for another patient.

7. The Ontario Government needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged.

8. The Ford Government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor.

9. The Government must now rescind and fix the January 13, 2021 triage protocol, and directly consult the public on this issue.

1. The Government Cannot Direct Which Patients Live or Die by Simply Sending a Memo to Hospitals

It is not clear that your Government has authority to make such life and death decisions in secret, by a memo to hospitals. This concern has been reinforced by the Ontario Human Rights Commission, and at least to some extent, by the Government’s own external advisory Bioethics Table.

The rule of law unremittingly applies to the Ontario Government without exception, even during a pandemic. The Government cannot issue directions on which patients, needing life-saving critical care, are to be refused that care during rationing or triage, simply by sending a memo to hospitals, much less a secret memo written by unnamed people. There must be a proper legislative basis for any such direction. That legislation must comply with the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, and the Criminal Code of Canada.

Any scholarly debate over what standard or rules should apply for conducting critical care triage is completely beside the point, if the triage directions are not legally authorized and mandated. Minister, what valid legislation gives the Government or its Critical Care COVID-19 Command Centre the authority to give such life and death directions, or to decide when they are to go into operation? The January 13, 2021 triage protocol simply says it was approved by the Ontario Critical Care COVID Command Centre.

Amplifying this concern, the January 13, 2021 triage protocol does not include the paramount requirement that any refusal of life-saving critical care to a patient needing it must be lawful. Where it lists principles to govern triage, the document makes some references to legal considerations, but fails to recognize legality as paramount.

2. New January 13, 2021 Triage Protocol Wrongly Directs Use of the Disability-Discriminatory Clinical Frailty Scale CFS

We strongly object to the January 13, 2021 triage protocol because it uses, as part of critical care triage, the Clinical Frailty Scale (CFS). When used in such triage, the CFS demonstrably directs disability-based discrimination against some patients with disabilities.

We, the ARCH Disability Law Centre and others thoroughly warned The Government and its external advisory Bioethics Table of this months ago. The Ontario Human Rights Commission has also objected to the CFS being used in the triage protocol. Yet this discrimination has not been eliminated from the January 13, 2021 triage protocol. As explained further below, the January 31, 2021 protocol’s various references to human rights do not counteract this impermissible discrimination.

In this letter, we address disability discrimination. Serious concerns about racial, Indigenous and other illegal discrimination have also been raised with the Government. That must also be effectively addressed. Moreover, where a patient has a disability and is also the member of another Human Rights Code-protected vulnerable minority, there is an increased risk of compounding impermissible discrimination.

People with disabilities have been disproportionately exposed to the risk of getting COVID-19 and suffering its most serious impacts. Disproportionately, those dying from COVID-19 in Ontario are people with disabilities. For example, those dying in our long term care homes are people with disabilities. Compounding this cruel reality, several reasons show that people with disabilities now risk being de-prioritized in access to life-saving critical care that they will disproportionately need if Ontario hospitals, now near the breaking point, cannot provide life-saving critical medical care to all patients needing it.

First, buried in the January 13, 2021 triage protocol amidst a blizzard of technical medical jargon is a mandate for doctors to use the Clinical Frailty Scale (CFS) as part of triage assessments of at least some patients who need critical care. The AODA Alliance and the ARCH Disability Law Centre demonstrated last summer to the external advisory Bioethics Table that the CFS is riddled with incurable disability discrimination. See e.g.:

1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table;
2. The captioned video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage; and
3. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.

The January 13, 2021 triage protocol permits two different ways to use the CFS, and includes a simplified tool for using it. The appendix to that protocol document entitled Clinical Assessment Tools for Short Term Mortality Risk Assessment for Critical Illness repeatedly authorizes a triage doctor to use the CFS, and also more generally states:

Use Clinical Frailty Score as part of a holistic assessment for people aged 65 and over, without stable long-term disabilities (e.g. cerebral palsy), learning disabilities or autism. For any patient aged under 65, or a patient of any age with stable long-term disabilities (e.g. cerebral palsy), learning disabilities or autism, do not use the CFS as the degree of disability may not reflect STMR. Consider comorbidities and underlying health conditions in assessing their STMR.

Under the CFS as mandated here, in the case of a critical care patient with a progressive disease but who has more than six months to live, their likely mortality would be assessed in part by the number of activities of daily living that they can perform without assistance, having regard to each of these specific activities: dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The CFS is a clear illustration on its face of direct disability discrimination. As such, there is no need to resort to the additional fact that it also has clear discriminatory disproportionate impact on patients with disabilities.

It is a core feature of the CFS that it calls for an assessment of a patient’s ability to undertake certain activities of daily living independently or without assistance. Yet at the core of equality and human rights protections for people with disabilities is their right to disability accommodations where needed, and their right to have their abilities assessed with needed disability accommodations, not with their needed disability accommodations wrenched from them. The CFS thereby embodies a deeply entrenched, blistering violation of human rights on that basis alone.

For the triage protocol to invite doctors or other health care professionals to assess the abilities of a patient with disabilities to undertake certain activities of daily living independently or without assistance is to reinforce and build upon deeply injurious stereotypes about people with disabilities. To do so in a protocol that invokes bioethical commitments to fairness is especially indefensible.

It would be wrong to assess a doctor’s ability to practice medicine by first requiring them not to wear their eyeglasses. In a decision over life or death, it is all the more wrong to take that erroneous kind of approach to assessing a patient’s ability to undertake the CFS-listed activities of daily living without considering their needed disability accommodations.

Second, such an assessment by doctors or other health professionals of people with disabilities risks triggering a covert assessment of the social worth or quality of life of patients with disabilities. That deliberative process must be strictly and proactively prevented, and not directly or indirectly tolerated or encouraged. This serious problem is not eliminated by a reference elsewhere in the January 13, 2021 triage protocol about not evaluating a patient’s quality of life.

Third, Dr. James Downar, a prominent member of the advisory Bioethics Table, acknowledged during our virtual meetings last summer with that Table that there is subjectivity in a doctor’s application of the CFS to a particular patient. From this we are concerned that two different doctors could well score the same patient differently. In other words, each doctor can become a law unto themselves.

I pointed that subjectivity out to Dr. Downar on the January 13, 2021 panel on The Agenda with Steve Paikin in which we both took part. Dr. Downar did not deny having said that.

Making this an even greater concern, the fact that a person has an MD does not mean they have expertise in assessing a patient’s ability to undertake activities of daily living. During our meetings last summer with the Bioethics Table, we were told that most physicians are not trained in medical school on how to use the CFS. Some geriatricians have training or experience in its use. In contrast, we noted for the Bioethics Table that the health care professionals whose expertise more specifically focuses on a patient’s ability to undertake activities of daily living (a central part of the CFS) are occupational therapists, not physicians.

Fourth, further increasing its arbitrariness and unfairness, the CFS’s core focus on a patient’s ability to perform certain activities of daily living can bias against patients based on their socio-economic status, or the timing of when they acquired their disability. Poor people with disabilities can have less access to rehabilitation training and supports compared to the more affluent. Someone who acquired their disability long ago may have had much more opportunities to learn to perform such activities of daily living, as compared to those who just got their disability more recently. When reviewing the CFS with some members of the Bioethics Table last summer, it was not disputed that the CFS measures can have such adverse affects depending on a patient’s socio-economic status or when they acquired a disability.

Fifth, it does not reduce these concerns that the protocol directs a triage doctor to use a patient’s CFS score as but one factor in a holistic triage assessment of the patient. This is because:

a) To the extent that a triage doctor uses the CFS at all for triage, it has all the serious problems that we and other disability advocates have repeatedly identified.

b) Under this new triage protocol, each triage doctor is given a sweeping discretion to weigh a patient’s CFS score as a factor in their triage decision. There is no assured consistency in how much weight each triage doctor gives that CFS score. Some will give it a lot of weight. Others could give it much less weight. Here again, each doctor will be a law unto themselves. The weight they decide to give the CFS score could well be a decisive factor on whether the patient is allowed to live or left to die.

c) For a triage doctor to be given a discretion to decide how much weight to give a patient’s CFS score in making a triage decision is in effect to give that doctor or team a carte blanche to apply whatever triage criteria they wish. After using whatever triage criteria they wish, they could thereafter assign to the patient’s CFS score that amount of weight that will support the outcome that the triage doctor otherwise preferred. Once again, each doctor becomes a law unto themselves.

d) This opens the door to covert or even unconscious disability discriminatory or stereotype-based decisions. It also opens the door to a triage doctor in effect making their decisions on the patient’s perceived quality of life or social utility.

Even the Bioethics Table has in substance conceded that limits are needed to the CFS’s use. The Government’s earlier March 28, 2020 triage protocol (rescinded on October 29, 2020) directed the CFS’s use for patients over age 18. The Bioethics Table subsequently recommended it not be used for those under 65, and recognized some limitations to it. The Bioethics Table in its September 11 Report in Appendix C stated the following:

However, the Bioethics Table learned through its consultation with disability rights experts that the use of CFS in the context of critical care triage raises significant concerns that persons with disabilities, many of whom may need assistance with activities of daily living, would score higher on the CFS than an able-bodied person and that this could lead to the over-triaging of persons with disabilities.

The CFS was not created as or designed to be used as a triage tool. Limiting it to patients over 65 does not eliminate any of the foregoing concerns for those patients to whom it would be applied.

3. Setting a Patient’s 12 Month Likely Survival as the Triage Criterion Further Risks Disability Discrimination

The January 13, 2021 triage protocol sets as the triage criterion a patient’s likelihood of surviving for at least 12 months. Like the Ontario Human Rights Commission, we object to this 12 month measure. We urge that it be substantially shortened.

It appears undisputed that doctors are not able to objectively predict if a patient, needing critical care, is likely to live for more than 12 months. No objective tool exists for measuring this. The January 13, 2021 triage protocol, by offering a blizzard of medical jargon, may give the impression that this is all objective medical science. However, such an impression would be false.

The 12 month horizon would give doctors far too much latitude for subjective or unscientific assessments. This is yet another way in which triage doctors would become a law unto themselves.

Exacerbating this, last summer, during the Bioethics Table’s virtual meetings in which we took part, I asked Dr James Downar (head of a hospital palliative care service) about how doctors evaluate a patient’s 3 month likely mortality to qualify for admission to palliative care. He candidly said We lie. For our part, we are concerned that if doctors lie for a 3 month mortality assessment, there is at least a risk that some doctors will do the same for a 12 month mortality assessment. Once more, doctors would each become a law unto themselves.

We do not understand Dr. Downar as saying that doctors lie maliciously or selfishly, in that context. We understood him to mean that they do so to help a patient get into palliative care.

Dr. Downar has taken strong exception to my making this point. An example of this was at the end of the January 13, 2021 panel on The Agenda with Steve Paikin. He argued that there is a difference between doctors doing so to get a patient into palliative care (i.e. to get them needed medical services). However, it is pivotal that Dr. Downar did not deny saying what he did regarding doctors’ conduct. Moreover, to us, the cause for concern arising from his statement to us last summer is clear and present, despite Dr. Downar’s argument to diminish it.

Beyond the foregoing, there is a practical risk that this triage protocol will not govern actual triage decisions, regardless of its contents. In a specific hospital, in the midst of a pandemic surge, there is a real risk that a triage doctor, called upon to make a critical care triage decision, will look at the four patients who need critical care and the two available critical care beds, and will size them up based on the doctor’s own personal views of who is the most deserving. Here again, the risk of stereotypes and of assessing perceived quality of life or social utility of each of the patients is palpable. The CFS’s focus on a patient’s ability to undertake certain activities of daily living independently or without assistance risks triggering such stereotype-based thinking.

This is made more evident since, during the December 17, 2020 roundtable on this issue held by the external Bioethics Table and the Ontario Human Rights Commission, Dr. Andrew Baker, a member of the Government’s Critical Care Command Table, made it clear that in his view, the way to address triage now would be life years saved. That would fly in the face of the bioethics Table’s September 11, 2020 report, the Government’s January 13, 2021 direction to hospitals, and the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms. He thereby further illustrated the risk of a doctor becoming a law unto themselves.

4. References to Respecting Human Rights in the January 13, 2021 triage protocol Do Not Eliminate Serious Concerns about Its Authorizing Disability Discrimination

Despite its several references to human rights, the January 13, 2021 triage protocol takes a fundamentally wrong approach to the Ontario Human Rights Code. That law cannot be overridden by a Government memo, a hospital administrator or a front-line doctor. It is a quasi-constitutional law. It can only be overridden, if at all, where another valid piece of legislation includes an override provision. Yet contradicting this, the January 13, 2021 triage protocol erroneously directs hospitals and doctors in effect that there may be some room to act contrary to the Ontario Human Rights Code during the pandemic. It states:

This standard of care is intended to align with the Ontario Human Rights Code (Appendix A) to the extent permitted in the context of a major surge.

Making this worse, the protocol then purports to explain what the Ontario Human Rights Code requires. It does so in a dangerously incomplete way, from the prospective of patients with disabilities. It does not explain that no assessment tool can be used which, though neutral among patients, and medically-sincere in its application, has a disproportionate discriminatory impact on people with disabilities, unless a compelling defence can be made out that accords with human rights standards. As explained earlier in this letter, the Clinical Frailty Scale which the document later explicitly permits is just such a disability discriminatory tool. Any such requirement can only be used if the organization using it can show that it is impossible to accommodate people with disabilities in relation to the service in question without undue hardship. The burden of proof to justify it is on those using the discriminatory tool, not on the patient with a disability who would be its victim.

5. The January 13, 2021 Triage Protocol Does Not Provide Patients Whose Life is at Stake with Basic Due Process and Procedural Fairness

The January 13, 2021 triage protocol says that fairness and fair procedures are valued principles that are to apply. Yet it does not provide due process to a patient whose life is in jeopardy due to possible critical care triage. This flies in the face of the Canadian Charter of Rights and Freedoms, our submissions to the Bioethics Table last summer, and the Bioethics Table’s September 11, 2020 report to the Government.

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

For example, under this protocol, a doctor, who has never before hospital admission met the patient, may use the disability-discriminatory Clinical Frailty Scale to help rate the patient’s likely 12 month mortality, in part by assessing if the patient can without assistance undertake 11 activities of daily living, such as getting out of bed, dressing, eating or doing their finances. Due process entitles the patient to have fair notice and a chance to be heard by the persons making a life-or-death decision about their access to life-saving critical care (e.g. by showing why they can do those activities).

As well, there is no right of appeal. The Bioethics Table recommended an internal appeal within the health care system. We support that but have urged that there also needs to be an external swift appeal to a court or tribunal, given that lives are at stake. From what we have received, it appears that the Government may have included an internal appeal within the health care system in its secret November 13, 2020 draft protocol (never made public or shared with us). It also appears that the January 13, 2021 triage protocol has eliminated even that partial element of due process for patients. No explanation for this has been given.

6. The January 13, 2021 Triage Protocol is Unclear on Whether it is Ever Directing Doctors to Withdraw Ongoing Critical Care from a Patient Already Receiving it to Make Room for Another Patient

The January 13, 2021 triage protocol is unclear at points on whether it only gives directions on refusing to admit a new patient to critical care who needs it, or whether it could also include evicting an existing patient, already receiving critical care, from a hospital’s critical care service. Some points in the protocol make it sound like it only speaks to restrictions on which new patients can get into a critical care ward. Other parts could leave open the possibility of evicting an existing critical care patient from continuing to receive their critical care, without their consent, even though they still need critical care.

For a hospital or doctor to evict a critical care patient over their objection from receiving further critical care they need, risks extremely serious issues, including those that must be considered under the Criminal Code. I raised this once again during the January 13, 2021 panel on The Agenda with Steve Paikin. Here again, we do not see how this can take place, much less how a Government memo has legal authority to permit this. The protocol’s lack of clarity on this point is deeply troubling.

7. The Ontario Government Needs to Announce and Implement a Clear and Effective Strategy to Prevent the Need for Life-Saving Critical Care Services to Ever Have to Be Rationed or Triaged

There would be no need for rationing or triage of critical medical care if the Government had implemented an effective plan to ensure that Ontario had enough critical care beds, equipment and doctors to accommodate the COVID-19 surge. The Government knew last February, 11 months ago, that it needed to be ready. It cannot now excuse its failure to be ready on some unexpected surprise.

On the Agenda with Steve Paikin’s January 13, 2021 panel, Dr. James Downar stated that the risk is not a shortage of hospital space or equipment. There is a risk of a shortage of doctors to deliver critical care. Of course, the Government could not have trained a whole new class of doctors in the past eleven months. However, the Government could have implemented a strategy to train doctors to be redeployed to meet this surge need, who are practicing in related areas, to the extent possible. That would seem preferable to turning away patients altogether from needed life-saving critical care, due to staffing shortages. Because the Health Ministry has refused to talk to us about this entire issue, we have had no chance to discuss this.

Just two months ago, despite warnings from professionals about the anticipated winter COVID-19 surge, the Government was in public denial of the situation’s severity. On November 5, 2020, answering an opposition question about this triage issue in the Legislature’s Question Period, Robin Martin MPP, your Parliamentary Assistant denied the likelihood that a triage protocol would have to be invoked. She said:

We don’t anticipate getting anywhere near having to use such a protocol

Making this worse, we do not know what the Government has done to ensure that there is a swift, efficient, centralized system in place to transport critical care patients from overloaded regions to those not yet overloaded. The January 13, 2021 triage protocol ambiguously states:

In the context of a major surge, it is expected that hospitals and regions will collaborate to coordinate the allocation of critical care resources to save the most lives possible, and cooperate with provincial directions provided by the Ontario Critical Care COVID Command Centre.

For this to operate effectively, it should be centrally planned and operated on a province-wide basis, administered and monitored, with public accountability. It cannot simply be an expectation or hope that hospitals will do this in the midst of a pandemic crisis, each being left to re-invent the wheel.

8. The Ford Government’s Handling of the Critical Care Issue from the Start Has Been Plagued with Harmful Secrecy, Evasiveness and a Lack of Candor

We respectfully take exception to how your Government has dealt with this issue over the past eleven months. As a troubling start, last winter and spring, your Government developed the March 28, 2020 critical care triage protocol in secret. You did not alert the public that you were developing a protocol for this issue. You sought no input from the public including the disability community. It seems you only obtained input from the medical and bioethics community. Yet they have no expertise in the law, the Constitution, human rights or disability rights, as the past months have amply shown.

Once that secret March 28, 2020 triage protocol was leaked, your Government claimed that it was only a draft. Yet it was never marked draft. Your Government has still never made it public.

Last April, that secret March 28, 2020 triage protocol was widely condemned as discriminatory against some patients with disabilities. Yet your Government left it festering in place at Ontario hospitals for six months. Only after the disability community, the Ontario Human Rights Commission and even your own Bioethics Table called for it to be rescinded, did your Government rescind it, though only after weeks of further delay. That too was done in secret on October 29, 2020. We only learned of its cancellation on November 5, 2020 when your Government was pressed on this triage issue by the opposition in Question Period.

For the entire pandemic, you and your Ministry have refused to meet or talk with us about our input and concerns on this triage issue. You have not answered any of the six earlier letters that we sent you since September. For the past eleven months, your Government has been hiding behind its external advisory Bioethics Table, using them in effect as human shields. We know from decades of disability advocacy that on such important issues, it is essential to speak directly to those inside government who are making the decisions.

Too often, we only find out about steps taken on this issue when the opposition ask questions in Question Period in the Legislature, or when a reporter asks a question at the Premier’s news conference, or when documents are leaked. Written questions to the Government from the media too often go unanswered or get evasive answers.

There are still more illustrations of the Government’s secrecy on this issue. The January 13, 2021 triage protocol reveals that on January 12, 2021, the Government-appointed external advisory Bioethics Table revised its September 11, 2021 report to the Government, and issued a new report dated January 12, 2021. That revised report has not been disclosed to us and the public. We ask that you immediately make it public and provide it to us in an accessible format.

The January 13, 2021 triage protocol states that it is informed by extensive Ontario-based research into public views on pandemic triage and resource allocation. We have never been shown any such research, nor has it been discussed with us. As far as we can tell, no such information was made public. Most troubling, your Government has held no public discussion or direct Government public consultation on this issue since the pandemic began.

The January 13, 2021 triage protocol was approved by the Ontario Critical Care COVID Command Centre, to which authority is given over part of the triage process. Its mandate and membership should be made public, along with its key decisions. On December 15, 2020, we wrote you to ask for that Centre’s mandate and membership. Here again, you have not answered.

Your Government apparently sent an earlier draft protocol to hospitals on November 13, 2020, not shared with us or the public. We gather from other documents we have received that it did include some kind of patient appeal rights. These evidently have been removed from the January 13, 2021 document which we are addressing in this letter. No explanation has been offered for the removal of any patient right of appeal.

In the past two months, your Government twice made important public statements, when pressed on this issue, which turn out to be inaccurate. On November 5, 2020, the opposition asked the Government about this topic. As quoted in part earlier, your Parliamentary Assistant Robin Martin stated:

A revised framework may be shared in the future and distributed, should pandemic conditions deteriorate significantly in the province.We don’t anticipate getting anywhere near having to use such a protocol”

A short eight days later, on November 13, 2020, your Government secretly sent a draft new triage protocol to hospitals one which the Government has not made public or admitted publicly to having sent. You did not send any such materials to us, though we keep asking for such materials. Ms. Martin’s answer is contradicted by your Government’s action eight days after she spoke.

Similarly, on December 3, 2020, at the Premier’s news conference, you were asked by Global News about this triage issue. You made it sound like your Government is having discussions with the Ontario Human Rights Commission on together writing a new triage protocol. On December 7, 2020, the Chief Commissioner of the Ontario Human Rights Commission wrote you. Her letter in effect makes it clear that there were no such discussions between the Ministry and the Human Rights Commission.

Last Wednesday, January 13, 2021, Dr. James Downar, a member of the Bioethics Table and obviously a key player on this issue, stated during the panel on The Agenda with Steve Paikin that consultations on this issue are ongoing, speaking in the present tense. He strongly opposed suggestions that your Government has not been open and consultative on this issue.

We learned subsequently from the January 13, 2021 triage protocol that the Bioethics Table had secretly delivered a revised report to your Government the day before that panel, January 12, 2021 one which we had not heard of or seen. We also now know from the January 13, 2021 triage protocol that by then, the Government’s Ontario Critical Care COVID Command Centre in charge of this issue had a week earlier approved a series of specific checklists for critical care triage including tools we reference above as seriously discriminatory against people with disabilities.

It took three months of pressure to get the Government to release the Bioethics Table’s September 11, 2020 report and recommendations. After the Government’s three months of stalling, we were then given just a few days to take part in a roundtable, with insufficient time to properly review it. Even then, the Government held back from us a key document, sent to hospitals on November 13, 2020, on which we should have been able to comment. Even then, participants from the disability, racialized and Indigenous communities all voiced serious human rights concerns about the Bioethics Table’s September 11, 2020 report. We asked in advance of that roundtable for specific illustrations of how that report’s approach to triage would work in individual cases. None was given, then or afterwards.

The January 13, 2021 triage protocol speaks about the importance of accountability in the triage process. Yet it provides no public accountability. Your Government’s approach to this issue lacks proper public accountability.

We sympathize very much with the plight of front-line medical staff and health workers dealing with the COVID-19 pandemic. We don’t expect that they want the responsibility that the Government is foisting upon them through the January 13, 2021 triage protocol, or that they would want to be party to disability discrimination.

9. The Government Must Now Rescind and Fix the January 13, 2021 triage protocol

We therefore ask you to do the following:

1. Please immediately advise if your Government disputes the accuracy of the attached as the January 13, 2021 triage protocol that your Government has had sent to Ontario hospitals to deal with critical care triage. Please now make public any and all documents that have been so sent, and the earlier November 13, 2020 draft, as well as the Bioethics Table’s January 12, 2021 report to the Government.

2. Immediately rescind the January 13, 2021 direction to hospitals.

3. Immediately make public the names of all those in decision-making or senior advisory roles on this issue within the Government, including within your Ministry and Ontario Health. That includes the membership and mandate of the Ontario Critical Care COVID-19 Command Centre.

4. Immediately hold urgent public consultations on this issue, before finalizing any policy on it.

5. Ensure that there is a proper legislative foundation for any policy on this issue. If, as we fear, there is none, then introduce legislation on this, and ensure that the public can present to the Legislature on it. Do not invoke closure to preclude such public input.

6. Ensure that any policy or law in this area includes:

a) If a short term mortality criterion is to be used, something far shorter than 12 months.

b) No use of the Clinical Frailty Scale.

c) No use of any other assessment tool until and unless it is publicly explained, and shown to be free of unlawful discrimination.

7. Ensure the provision of proper procedural fairness and due process for patients at risk of critical care triage, including an appeal to court or the Consent and Capacity Board.

8. Make public the Government’s plan for ensuring that critical care patients can be effectively and quickly transported to other parts of the province if needed, and that doctors can be effectively deployed to preclude the need for any critical care triage.

We remain eager to help. Please answer us. It is a matter of life and death.

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, Mary.Bartolomucci[email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]




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