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


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

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

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

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

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

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

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

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

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

Text of the May 7, 2021 Notice of Application

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

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

Text of the May 7, 2021 Affidavit of David Lepofsky

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

We hope this message finds you doing well.

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

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

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

RG




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


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

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

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

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

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

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

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

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

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

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @davidlepofsky and @aodaalliance

More background at www.aodaalliance.org

Text of the May 7, 2021 Notice of Application

APPLICATION

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

Text of the May 7, 2021 Affidavit of David Lepofsky

I, David Lepofsky, CM, O. Ont., LLB (Osgoode Hall), LLM (Harvard University), LLD (Hon. Queen’s University, University of Western Ontario, Law Society of Ontario), of the City of Toronto, in the Province of Ontario,

AFFIRM:

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

Dear K-12 Standards Development Committee members:

We hope this message finds you doing well.

We would like to provide an update on the progress of the committee’s initial recommendations report.

As you know, your committee Chair, Lynn Ziraldo, submitted the report – and the accompanying report of the Technical Sub-Committee on Transitions – to MSAA Minister Raymond Cho on March 12.

We have been busy preparing the reports for online posting, as well as translating them into French and preparing the survey that will accompany the postings. All of this work goes towards ensuring that the reports receive the most comprehensive feedback possible from the public.

As well, we understand the importance of posting this document as soon as possible, so that respondents will have a chance to consider providing input before the end of the school year. As I am sure you understand, our government is facing unprecedented challenges in delivering services to the public, and must prioritize all public-facing initiatives.

We look forward to notifying you when these postings are going to occur and appreciate your patience and understanding as we move closer to the posting date.

As always, you can reach out to the Chair, Lynn Ziraldo or the Ministry anytime with questions.

Thank you.

Accessibility for Ontarians with Disabilities Division

Ministry for Seniors and Accessibility

A copy of the email dated April 29, 2021 is attached as Exhibit A.

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



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


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

April 27, 2021

SUMMARY

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

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

April 26, 2021

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

Dear Minister,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please stay safe.

Sincerely,

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

Globe and Mail April 26, 2021

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

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

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

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

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

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

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

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

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

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

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

Most agree it already is.

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

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

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

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

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

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

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

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

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

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

There were 24 deaths.

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

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

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

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

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

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

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

Lipsman said.




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


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

April 22, 2021

SUMMARY

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

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

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

1. We have gotten more and more feedback from people with disabilities about the critical care triage disability objections. We keep hearing that people are frightened and angry. As if the COVID-19 pandemic was not bad enough, this issue makes them feel even more vulnerable and at risk.
At the same time, the message we all hear from the public around Ontario over the past six days has been louder than ever: The Ford Governments response to the COVID-19 pandemic needs a major re-think, and fast. Weve added that this rapid re-think needs to include Ontarios critical care triage protocol and plans.
2. In the Legislatures Question Period this week, the Ford Government offered the public evasions and contradictions on this issue.
On Tuesday, April 20, 2021, Health Minister Christine Elliott made a statement that many understood as denying that there even is an Ontario critical care triage protocol. She stated:
I think one thing is really important, Speaker, and I would say to the member opposite, through you, that the speaker is alleging that there is a triage protocol in place in Ontario. There is not; there is not.
This, of course, would contradict the January 13, 2021 Critical Care Triage Protocol, which has been posted on the AODA Alliance website for three months. It would contradict the January 23, 2021 online webinar provided by Critical Care Services Ontario which tries to convince doctors to ready themselves to use that protocol if it becomes necessary. It would contradict the interview on the April 21, 2021 CBC Ottawa Morning radio program in which Dr. James Downar, the author or co-author of that protocol, defended it.
On Twitter, a number of members of the public angrily denounced the Ministers statement. The next day, April 21, 2021, Health Minister Christine Elliott acknowledged that there is a critical care triage protocol, but said it has not yet gone into operation. She stated:
I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.
There have been discussions. I understand that there were a number of disability groups that were concerned with respect to a previous draft that was prepared earlier this year. That was then reviewed with the human rights commission. There have been a number of discussions about modifications to it. But nothing has been activated, nothing has been approved by this government.
3. The Health Minister said that there were objections from disability groups to an earlier draft of the critical care triage protocol. That is true. However, we have repeatedly made public that we also object to the most recent version of it, the one issued to hospitals dated January 13, 2021.
4. Also in the Legislature, the Ford Government refused to answer a clear, simple and direct question on what instructions regarding critical care triage have been given to ambulance crews. In Question Period on April 21, 2021, MPP Joel Harden asked Health Minister Elliott:
Speaker, I want to ask the minister, who is very well versed in these issues: What instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs?
The Ministers response did not answer this important question. The AODA Alliance asked the Health Minister the same thing two months ago in our February 25, 2021 letter to her. The Government has never answered that question or that letter.
In Health Minister Elliotts April 21, 2021 answer in Question Period, an impression may be created that the Government has been consulting on the critical care triage protocol. No one has consulted us on the January 13, 2021 Critical Care Triage Protocol.
5. In its defence, the Ford Government said it is now reaching out to others outside Ontario, to see if they can bring more doctors, nurses and other needed health professionals to help out in Ontarios intensive care units. This is a much-needed measure. It could avert the need for any critical care triage.
However, we must ask why the Ford Government was not doing this weeks and months ago, when it was given ample early warning that Ontario was at risk of critical care overload. Had it done so, we would not be facing the imminent danger we now are confronting. The Ford Government could have had in place detailed emergency plans to shuttle health care professionals to Ontario, with prior clearances from the relevant licensing bodies so they can work here in this emergency. This further illustrates Ontarios failure to properly prepare.
For more information on these issues, visit the AODA Alliance websites health care page. MORE DETAILS

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

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

The Speaker (Hon. Ted Arnott):Supplementary?
Ms. Sara Singh:Mr. Speaker, with all due respect to the Minister of Health, that response shows us how out of touch with reality this minister is. Doctors are sounding the alarm bells and this government continues to ignore their pleas for help. The government is following a pattern of denying the problem and acting too late.
Now the government is begging other provinces for help, but refusing the federal governments assistance and the assistance of the Red Cross. Speaker, health care systems in other provinces are also fighting COVID-19. They need their health care workers just as much as we do. It was this Premiers responsibility and this Minister of Healths responsibility to help protect people here in Ontario, and they failed to do that at every step of the pandemic.
This is a national and global failure and it is upsetting and heartbreaking to know that they could have acted and they chose not to. With months to plan for this crisis, why did this Premier fail to address the issues causing ICU capacity to rise, and why does the government think its another governments responsibility to come and clean up their mess? Interjections.
The Speaker (Hon. Ted Arnott):Ill ask members to please take their seats and allow the Minister of Health to reply.
Hon. Christine Elliott:Again, through you, Mr. Speaker, I would say to the member opposite that what youre suggesting is simply not the case. Since the beginning of this pandemic, we have been working hard to make sure that we have both the health human resources Ms. Sara Singh:Why are people dying?
Hon. Christine Elliott:and the physical capacity in order to deal with whats been happening. We have created Interjection.
Hon. Christine Elliott:I dont know if the member opposite really wants to hear me, shes
The Speaker (Hon. Ted Arnott):Im going to ask the Minister of Health to take her seat. Interjections.
The Speaker (Hon. Ted Arnott):Im going to ask the member for Brampton Centre to come to order. Im going to ask the government House leader to come to order. Interjection.
The Speaker (Hon. Ted Arnott):Always innocent.
Im going to recognize the Minister of Health to conclude her response.
Hon. Christine Elliott:Thank you, Speaker. To continue, since the beginning of this pandemic, we have created over 3,100 new hospital beds, which is the equivalent of six new community hospitals. We have also added 14% to intensive care capacity, which is significant in the context of this pandemic.
We have also added resources in order to be able to deal with the health human resources that we need. We have allowed for the deployment of people from one sector to another.
Finally, I would say with respect to whats happening with other provinces and other organizations coming in to help us, were very grateful for the help thats being offered by the other provinces and were very grateful to the federal government for their offer of assistance from the Red Cross as well. We know that we need help right now. We have the physical capacity. We need some more health human resources and we are using those resources to make sure everyone who needs help will get help in our hospitals. Ontario Hansard April 21, 2021
Question Period
COVID-19 RESPONSE
Mr. Joel Harden:My question is to the Minister of Health. As many people have already raised this morning, our ICUs are near the breaking point. Were getting close to 100 patients now being treated in our ICUs, but despite this fact, the government has refused to make public its plans for critical care triage in those ICUs. We dont know. People with disabilities and their loved ones and advocacy organizations still dont know what has been negotiated in secret and what actually will happen when those life-and-death decisions take place but, at home, Dr. David Neilipovitz, the ICU director at the Ottawa Hospital told CBC News, It would be naïve for us to think that triage or changes in the standard of care have not already come about. Lets think about that.
Yesterday, the minister rose in this House and said there is no clinical triage protocol, but we know that hospitals received one on January 13. We also know that a training was done for medical professionals on YouTube on the 23rd of January.
Speaker, I want to ask the minister, who is very well versed in these issues: What instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs? The Speaker (Hon. Ted Arnott):Minister of health.
Hon. Christine Elliott:I can certainly advise the member that no triage protocol has been activated or approved by the government of Ontario.
There have been discussions. I understand that there were a number of disability groups that were concerned with respect to a previous draft that was prepared earlier this year. That was then reviewed with the human rights commission. There have been a number of discussions about modifications to it. But nothing has been activated, nothing has been approved by this government.
What we are doing instead is to create the capacity so that we can care for all the patients that come into our hospital, whether theyre COVID patients or emergency patients that come in otherwise. We have created over 3,100 beds since this pandemic began, increased our intensive care capacity by 14%.
We are looking at bringing in other health professionals from other provinces and other countries so that, notwithstanding having the creation of those spaces, we will also have the health human resources in order to be able to operate them safely, carefully and professionally. The Speaker (Hon. Ted Arnott):The supplementary question.
Mr. Joel Harden:Earlier today, I was joined by disability rights leaders for a media conference, all of whom are calling upon this government to make public its plans for critical care triage. Speaker, I know this minister served as Patient Ombudsperson for this province for years and knows full well that every patient, physiotypical, neurotypical or not, has a right to their care at the point of service. But the minister also should know that hospitals got a critical triage protocol on January 13, that a training has been conducted. So I must admit my extreme frustration that today, when our ICUs are nearing capacity, we are still hearing, There are no plans.
Speaker, let me say very clearly for this House, I didnt know, at this point: not an acceptable answer. I was just following orders, at this point: not an acceptable answer. Please forgive me to disabled patients and their loved ones: not an acceptable answer.
Will you make sure that people with disabilities are not discriminated against in the ICUs: yes or no?
The Speaker (Hon. Ted Arnott):Again, Ill ask the members to make their comments through the Chair. The Minister of Health to respond.
Hon. Christine Elliott:The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago, and I dont need to take any instructions from anybody Ms. Andrea Horwath:Ha!
Hon. Christine Elliott:including the leader of the official opposition, about this issue. I have always stood up for the rights of people with disabilities Interjections.
The Speaker (Hon. Ted Arnott):Order. Opposition, come to order. The member for NorthumberlandPeterborough South, come to order. The Minister of Health, please reply.

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

QP Briefing April 21, 2021

Originally posted at https://www.qpbriefing.com/2021/04/21/solicitor-general-brushes-off-disability-advocate-concerns-about-triage-protocol/ SOLICITOR GENERAL BRUSHES OFF DISABILITY ADVOCATE CONCERNS ABOUT TRIAGE PROTOCOL
Home Health And COVID-19 Solicitor General Brushes Off Disability Advocate Concerns About Triage Protocol Solicitor general brushes off disability advocate concerns about triage protocol
Asked about concerns raised by disability advocates for months that the provincial triage guidelines discriminate against them, Ontario’s solicitor general got upset.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opposition leaders also called for transparency.

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

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

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

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

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

Elliott repeated that there is no official triage protocol yet.

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

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

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

Elliott disagreed.

“The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago,” she said, “and I dont need to take any instructions from anybody”

NDP Leader Andrea Horwath interjected, “Ha!”

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

Ottawa Citizen Online April 22, 2021

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

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

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

Joel Harden

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Democratic Party April 21, 2021 News Release

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

April 22, 2021

            SUMMARY

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

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

1. The Latest Developments in a Nutshell

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Speaker, I want to ask the minister, who is very well versed in these issues: What instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs?”

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

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

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

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

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

            MORE DETAILS

Ontario Hansard April 20, 2021

Question Period

COVID-19 RESPONSE

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

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

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

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

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

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

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

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

The Speaker (Hon. Ted Arnott): Supplementary?

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

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

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

Interjections.

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

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

Ms. Sara Singh: Why are people dying?

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

Interjection.

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

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

Interjections.

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

Interjection.

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

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

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

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

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

Ontario Hansard April 21, 2021

Question Period

COVID-19 RESPONSE

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

Yesterday, the minister rose in this House and said there is no clinical triage protocol, but we know that hospitals received one on January 13. We also know that a training was done for medical professionals on YouTube on the 23rd of January.

Speaker, I want to ask the minister, who is very well versed in these issues: What instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs?

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

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

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

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

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

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

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

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

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

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

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

Ms. Andrea Horwath: Ha!

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

Interjections.

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

The Minister of Health, please reply.

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

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

Interjections.

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

The minister, please conclude her response.

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

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

QP Briefing April 21, 2021

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

SOLICITOR GENERAL BRUSHES OFF DISABILITY ADVOCATE CONCERNS ABOUT TRIAGE PROTOCOL

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

Solicitor general brushes off disability advocate concerns about triage protocol

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opposition leaders also called for transparency.

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

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

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

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

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

Elliott repeated that there is no official triage protocol yet.

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

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

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

Elliott disagreed.

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

NDP Leader Andrea Horwath interjected, “Ha!”

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

Ottawa Citizen Online April 22, 2021

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

Opinion Columnists

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

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

Joel Harden

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Democratic Party April 21, 2021 News Release

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

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

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

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

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

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

Quotes:

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

 

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

 

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



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


Accessibility for Ontarians with Disabilities Act Alliance

ARCH Disability Law Centre

 

NEWS RELEASE – FOR IMMEDIATE RELEASE

 

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

 

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

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

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

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

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

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

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

Contact:

AODA Alliance Chair David Lepofsky

Email: [email protected]

Twitter: @aodaalliance

Robert Lattanzio, Executive Director

ARCH Disability Law Centre

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

Email: [email protected]

For more background on this issue, check out:

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



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


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

April 14, 2021

SUMMARY

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

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

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

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

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

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

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

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

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

e) The Ford Government’s delays on disability accessibility seem interminable. There have now been 804 days, or over 2 and a quarter years, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis. The Ontario Government only has 1,358 days left until 2025, the deadline by which the Government must have led Ontario to become fully accessible to people with disabilities.

For More on these issues, check out

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

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

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

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

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

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

MORE DETAILS

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

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

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

Dear Dr. Whitmore:

Re: Triaging of Critical Care in Ontario

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

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

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

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

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

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

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

Sincerely,
ARCH Disability Law Centre
Robert Lattanzio
Executive Director

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

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

April 13, 2021

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

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

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

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

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

Toronto Star April 8, 2021

News

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

[Premier Doug Ford is vowing to have…]

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

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

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

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

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

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

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

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

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

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

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

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

“We haven’t finalized any of that.”

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

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

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

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

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

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

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

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

Close contact with anyone from another household is discouraged.

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

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

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

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

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

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

London Free Press April 2, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[email protected]




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


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

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

SUMMARY

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

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

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

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

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

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

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

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

For more background, check out:

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

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

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

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

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

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

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

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

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

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

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

Stakeholder Roundtable

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

Summary Report

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

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

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

Key Issues/Concerns and Potential Actions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roundtable Facilitator:
Kwame McKenzie (CEO, Wellesley Institute)

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

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

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

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

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

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

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

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

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

APPENDIX 2: Development of the Proposed Framework

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

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

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

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

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

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

Acknowledgments:

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

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

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

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

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

APPENDIX 3: Roundtable Documents

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

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

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

Publicly Available Advocacy/Feedback related to Critical Care Triage

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

Journal & Media Articles

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

Summary of OHRC Feedback on Triage Framework
December 18, 2020

Interim Framework / Protocol

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

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

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

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

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

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

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

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

o Ensure a fair and efficient appeal mechanism

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

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

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

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

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

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

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

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

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

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

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

March 2, 2021

            SUMMARY

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

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

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

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

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

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

For more background, check out:

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

            MORE DETAILS

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

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

Chief Commissioner

cc:        Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

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

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

Hon. Doug Downey, Attorney General

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

OHRC Commissioners

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

Stakeholder Roundtable

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

Proposed Framework for Ontario

Summary Report

Prepared by:

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

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

21 December 2020

 

Introduction

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

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

 

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

 

Key Issues/Concerns and Potential Actions

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

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

1.     Human Rights and Non-Discrimination as Legal Obligations
 

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

Potential actions:

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

2.     Equity as a Positive Obligation
 

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

Potential actions:

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

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

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

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

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

Potential actions:

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

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

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

Potential actions:

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

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

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

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

 

5. Right to Appeal
 

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

Potential actions:

Ø  Establish an external appeals process by a third party.

6. Development of Interim Protocol for Wave 2
 

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

Potential actions:

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

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

APPENDIX 1: Roundtable Participants

Roundtable Facilitator:

Kwame McKenzie (CEO, Wellesley Institute)

Participants:

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

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

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

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

David Lepofsky (Chair, AODA Alliance)

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

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

Tracy Odell (President, Citizens with Disabilities)

Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)

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

Observers:

  1. Office of the Minister of Health

Emily Beduz (Director, Pandemic Response)

Heather Potter (Director, Issues and Legislative Affairs)

  1. Ministry of Health

Tina Sakr (Team Lead, Priority and Acute Programs)

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

Louise Verity (Strategic Advisor to the CEO)

  1. Ontario COVID-19 Critical Care Command Centre

Andrew Baker (Incident Commander)

 

  1. Ontario Human Rights Commission

Ena Chadha (Chief Commissioner)

Violetta Igneski (Commissioner)

Raj Dhir (Executive Director and Chief Legal Counsel)

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

Bryony Halpin (Senior Policy Analyst)

Jeff Poirier (Senior Policy Analyst)

Rita Samson (Senior Policy Analyst)

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

Jennifer Gibson (Co-Chair; University of Toronto)

Dianne Godkin (Co-Chair; Trillium Health Partners)

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

Cecile Bensimon (Member; Canadian Medical Association)

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

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

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

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

Lisa Forman (Member; University of Toronto)

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

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

Stephanie Nixon (Member; University of Toronto)

Nancy Ondrusek (Member; Public Health Ontario)

Lisa Schwartz (Member; McMaster University)

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

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

Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students

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

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

viii) Recorder

Danielle Linnane (Quality Improvement Specialist, Ontario Health)

 

APPENDIX 2: Development of the Proposed Framework

 

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

 

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

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

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

Acknowledgments:

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

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

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

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

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

 

APPENDIX 3: Roundtable Documents

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

 

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

 

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

 

Publicly Available Advocacy/Feedback related to Critical Care Triage

 

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

 

Journal & Media Articles

 

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

APPENDIX 4: OHRC Recommendations

Summary of OHRC Feedback on Triage Framework

December 18, 2020

 

Interim Framework / Protocol

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

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

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

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



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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, [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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