AODA Alliance Endorses ARCH Disability Law Centre’s Brief that Shows in Even More Detail How the Ford Government’s Revised Draft Medical Triage Protocol, Now Undergoing Consultation, Would Discriminate Against COVID-19 Patients with Disabilities If There Were Not Enough Ventilators for All Patients Needing Them


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/

 AODA Alliance Endorses ARCH Disability Law Centre’s Brief that Shows in Even More Detail How the Ford Government’s Revised Draft Medical Triage Protocol, Now Undergoing Consultation, Would Discriminate Against COVID-19 Patients with Disabilities If There Were Not Enough Ventilators for All Patients Needing Them

July 24, 2020

          SUMMARY

The ARCH Disability Law Centre has made public a superb new brief to the Ford Government on the serious disability human rights problems with the revised draft medical triage protocol on which the Ford Government is now holding a consultation. The AODA Alliance strongly endorses ARCH’s brief and congratulates ARCH on excellent work. ARCH’s brief is set out below.

The Ford Government has still not rooted out the danger to people with disabilities that was created by the deeply flawed March 28, 2020 “medical triage protocol” that Ontario Health sent to all hospitals last spring. That protocol lets hospitals violate basic human rights of COVID-19 patients with disabilities if a surge in COVID-19 cases means there are not enough ventilators for all critical patients needing them. A number of disability organizations including the AODA Alliance have been pressing the Ford Government for over three months to fix the mess it thereby created.

The July 16, 2020 AODA Alliance Update made public a revised draft of the Government’s medical triage protocol, on which a consultation is now being held. We announced at that time that this revised draft medical triage protocol still has serious human rights problems from the disability perspective. We submitted that Update to the Ford Government’s advisory committee that is consulting on possible changes to that medical triage protocol.

Since then, on July 20, 2020, the ARCH Disability Law Centre submitted its new brief, set out below, to the Government’s advisory committee. The ARCH Disability Law Centre had a committee of human rights experts giving it input as it formulated this brief, including the AODA Alliance. The ARCH brief echoes and builds upon concerns that we have raised, and adds additional concerns, with which we entirely agree.

More Background

Check out:

* The July 16, 2020 AODA Alliance Update, that sets out serious disability human rights problems with the revised draft medical triage protocol.

* The text of the revised draft medical triage protocol.

* The April 7, 2020 virtual public forum on the impact of COVID-19 on people with disabilities, jointly organized by the AODA Alliance and the Ontario Autism Coalition. During this event, ARCH Disability Law Centre executive director Robert Lattanzio first made public the existence of the original March 28, 2020 medical triage protocol, and the disability human rights problems that it creates.

* The April 8, 2020 open letter, spearheaded by ARCH, identifying the serious disability human rights violations in the original March 28, 2020 medical triage protocol.

* The AODA Alliance’s April 14, 2020 Discussion Paper on what the medical triage protocol should include. In the three months since this was made public, no negative feedback was received about its recommendations.

* The Ford Government’s April 21, 2020 announcement that it would consult community and human rights experts on the medical triage protocol. It claimed that the March 28, 2020 protocol was only a “draft” even though it was never marked “draft”.

* The ARCH Disability Law Centre’s detailed May 13, 2020 analysis of the serious disability human rights violations created by the medical triage protocol, which the AODA Alliance endorses.

* To learn more about the many barriers that impede patients with disabilities in Ontario’s health care system, read the AODA Alliance’s February 25, 2020 Framework on what the promised Health Care Accessibility Standard should include, to be enacted under the Accessibility for Ontarians with Disabilities Act.

* The AODA Alliance’s health care web page, to learn more about the advocacy efforts to tear down the barriers facing people with disabilities in Ontario’s health care system.

* The AODA Alliance’s COVID-19 web page details the coalition’s efforts to advocate for the needs of people with disabilities during the COVID-19 pandemic.

          MORE DETAILS

Text of the ARCH Disability Law Centre’s July 20, 2020 Brief on the Ford Government’s Revised Draft Medical Triage Protocol

Originally posted at http://archdisabilitylaw.ca/resource/submissions-and-recommendations-regarding-ontarios-triage-protocol-draft/

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 to [email protected]

July 20, 2020

Joint Centre for Bioethics
University of Toronto
155 College Street, Suite 754
Toronto, ON M5T 1P8
Canada

Dear Ms. Gibson and Mr. Smith:

Re: ARCH Disability Law Centre Submissions and Recommendations Regarding Ontario’s Triage Protocol Draft dated July 7, 2020

The within document is the written submission of ARCH Disability Law Centre (ARCH) in response to a review of the draft Triage Protocol dated and delivered July 7, 2020[1] and from the discussion held at the July 15, 2020 Roundtable, co-convened by the Bioethics Table and the Ontario Human Rights Commission.[2] We provide these submissions in addition to our previous submissions dated May 13, 2020,[3] and not in substitute of them.

Background

While Triage Protocol 2 demonstrates some improvement over the first version,[4] there continues to be alarming issues that must be rectified to ensure that any response to a surge in COVID-19 cases does not adversely and disproportionately impact persons from marginalized communities including but not limited to persons with disabilities, elderly persons, Indigenous persons, Black persons and persons from other racialized communities. Representatives from various disability communities and organizations have made clear their concerns with both iterations of the Triage Protocol.

For ease of reference, the submissions that follow are divided into three sections. First, these submissions address the framework of Triage Protocol 2 – this captures the issues related to the overall structure and guiding principles of the document. The second section addresses procedural issues – this includes issues with the process of the development of the Triage Protocol and the lack of transparency. The third section addresses substantive issues, which includes the use of Clinical Frailty Scale as a metric to assess patients, the suggestion to use random selection as a method of fairness, and the importance of ensuring that a dispute resolution mechanism is in place.

ARCH submits the following recommendations to ensure that Triage Protocol 2 does not have an adverse impact on persons with disabilities:

  1. Non-discrimination must be a guiding principle in its own right to ensure appropriate weight is given to human rights in triage decisions.
  2. The Triage Protocol must not rely on medical utility as its primary guiding principle, as it leads to adverse consequences for persons with disabilities, and fails to consider systemic health discrepancies.
  3. The framework must shift from a focus on the intention not to discriminate to whether adverse impact (discrimination) flows from the approaches embodied in Triage Protocol 2.
  4. Ontario Health must communicate to every hospital and medical association/organization that the Triage Protocol dated March 28, 2020 is not be relied upon or implemented.
  5. Clear language and plain language versions of all drafts and the final version of the Triage Protocol are to be produced and distributed widely so that all relevant stakeholders are able to understand the information and provide feedback.
  6. Wider consultations are to be undertaken by the Bioethics Tables to ensure that the perspectives of persons with lived experience from marginalized and disproportionately impacted communities are heard and inform the drafting of the Triage Protocol.
  7. The Triage Protocol must not rely on the Clinical Frailty Scale in any capacity.
  8. The Triage Protocol must eliminate eligibility criteria that considers survivability beyond the acute COVID-related event.
  9. The Triage Protocol must provide clear and specific guidance and direction as to how random selection should be carried
  10. The Triage Protocol must include an individual dispute resolution process to ensure fairness, accountability, and due process.
  11. The Triage Protocol must include a section dedicated to providing guidance and direction on the duty to accommodate.

ARCH’s Recommendations are reproduced below following a discussion and rationale for each at the conclusion of each section.

Concerns with the overall Framework and Structure of the Triage Protocol

As noted at the July 15 Roundtable by members of the Bioethics Table, while it is not necessarily contemplated or envisioned that this Triage Protocol will be used beyond the COVID-19 pandemic, it will most likely inform responses to future pandemics.[5] It is beyond a doubt the Triage Protocol is an important document that will have long and consequential effects, some of which may be devastating and detrimental. Accordingly, it is imperative that such a document, despite its primary purpose being to provide direction to medical professionals, must not be framed solely within the medical model,[6] but also within a human rights framework. This is to ensure that the benefits of any emergency response are also afforded to marginalized communities, rather than at their expense.

In its current version, the Triage Protocol lists a number of ethical principles to guide and inform allocation of scarce critical care resources. These principles are to be considered the starting point, the foundation of any decisions made about critical care in the context of a major surge of COVID-19. These guiding principles, accordingly, seep into and colour all aspects of decisions about scarce resources, which are admittedly difficult decisions with grave significance and great public importance. As such, it is imperative that the principles that guide these decisions are strong, principled, and align with a human rights framework.

In short, the framework within which this Triage Protocol is being drafted must be reformed and reshaped. Without this necessary reformation, discrimination will continue to plague the Triage Protocol. As such, it is recommended that in drafting the Triage Protocol, the authors view the issues from a human rights lens, and in particular from a disability rights and intersectionality lens.

The Right to be Free from Discrimination

The Triage Protocol must be guided by non-discrimination in its own right. The right to be free from discrimination is a quasi-constitutional right afforded to every Ontarian and Canadian,[7] including when receiving health care services and medical attention.[8] It is a right that is elevated above other legal rights and restrictions.[9]

A patient’s right to be free from discrimination is not given its due weight in Triage Protocol 2. Guiding Principle 4, “Equity and Respect for Human Rights”, where a mention of a patient’s human rights is briefly made, is problematic for two reasons. First, it places the right to be free from discrimination on the same pedestal as other guiding principles, including beneficence and accountability. This is inappropriate, namely for the aforementioned reason that the right to be free from discrimination is a quasi-constitutional right, whereas beneficence, for example, is not. Second, Guiding Principle 4 is problematic because it collapses Equity and Human Rights and treats them as the same, or interchangeable, concepts which they are not.

Reframing the Triage Protocol 2 to reflect that the right to be free from discrimination is separate from, and superior to, the guiding principles will more accurately signal how fundamental and integral human rights law must be to the decision-making process. Moreover, this reframing will also account for, and acknowledge, intersectionality and how individuals who identify with multiple protected grounds by human rights law are impacted by the Triage Protocol.

Intersectionality[10] is a term used to refer to instances where persons may experience discrimination on more than one human rights protected ground simultaneously. The importance of an intersectional lens has been emphasized by the Human Rights Tribunal of Ontario which has stated that an awareness of compound discrimination is necessary in order to avoid a narrow and one-dimensional perspective.[11]

In the context of the Triage Protocol, it must be recognized that in treating patients who contract COVID-19 and require critical care within a surge, doctors must be cognizant of the compound discrimination that for example, a Black woman with a disability may experience. Accordingly, this section in the Triage Protocol should include a concrete explanation of what non-discrimination means and how it should be applied in a triage setting, such as “disability, age, race, or any other protected ground cannot factor, even 1%, into triage decisions.” [12]

In sum, the Triage Protocol must be framed within a human rights approach and place the principle of non-discrimination at the forefront, in order to set the proper foundation for triage decisions regarding the allocation of scarce resources and to give effect to the quasi-constitutional status of these rights.

Medical Utility is not a Proper Guiding Principle

 

Medical utility as a guiding ethical principle in the Triage Protocol is problematic. As set out in Triage Protocol 2, medical utility strives to create the maximum good for the maximum number of people.[13] While appearing facially neutral, utilitarianism actually often leads to adverse impacts for persons with disabilities.[14] By virtue of this principle, those that are not able-bodied are less likely to be part of the group that receives the “good” in question.

Utilitarian frameworks do not consider existing systemic health disparities.[15] Many persons with disabilities do not have equitable access to health care or health care outcomes. Many require additional resources to achieve equal health outcomes due to the need for disability-related accommodations, or due to systemic social inequities and/or intersectionality. But where a person’s health outcomes may be influenced by these factors, utility has the unintended consequence of disregarding individual needs.[16] A purely medical utility model has been criticized as “ruthless”[17] and at odds with societal values of defending and advancing the rights of marginalized communities.[18]

The problems with medical utility being a guiding factor are compounded when one considers that Triage Protocol 2 has attempted to distance itself from the pre-existing health and social inequities experienced by persons with disabilities and other marginalized groups in Ontario. At page 4 of Triage Protocol 2, it states that the pre-existing health and social inequities that have been revealed by the COVID pandemic will not be resolved by a triage approach.

Instead Triage Protocol 2 suggests that proactive measures must be taken in other sectors in order to prevent vulnerable groups from disproportionately contracting COVID. In effect, Triage Protocol 2 is offloading responsibility for these disproportionate impacts and distances itself from the systemic and pervasive barriers to health care in our society. This distancing is troubling, given that the very guiding principles that the triage approach is based on are likely to perpetuate and compound adverse health outcomes.

While the Triage Protocol cannot be expected to right all the systemic barriers experienced by marginalized communities, it cannot be permitted to perpetuate and compound these same inequities. Recognition of those pre-existing inequities is an important contextual factor that must be incorporated into and compensated for in the triage approach. This is an objective that is difficult to reconcile with pure medical utility being a primary guiding principle.

Focus on Impact

The Triage Protocol as a whole is written from a lens of intention without any focus on the impact that decisions made will have on patients from marginalized communities. It is well-established in human rights law that the intention to, or not to, discriminate is inconsequential and not a governing factor in determining whether or not a person has experienced discrimination.[19] Rather, it is the effect or impact experienced by the person alleging discrimination that is the focus of any human rights analysis.[20]

It is clear that neither the first version of the Triage Protocol nor Triage Protocol 2 contemplate the adverse impact that will be experienced by persons from marginalized communities, including persons with disabilities, flowing from decisions made pursuant to said Protocol. The inclusion of guiding ethical principles like medical utility[21] and (formalistic) fairness[22] demonstrate that the Triage Protocol inappropriately emphasizes the doctor’s intention, without turning its mind to the adverse impact that will be experienced by the person with a disability.[23] The result is a Triage Protocol with an approach that is problematic and discriminatory in nature.

Accordingly, a shift in the drafting framework must occur. The important question is not, whether the triage approach appears to be neutral and well-intentioned, but rather, whether marginalized communities could be adversely impacted. This shift in focus should lead to a shift in perspective when contemplating the guiding ethical principles; for example, when the focus is impact and not intention then substantive fairness, rather than formalistic fairness, becomes the objective.

Framework and Structural Recommendations:

 

  1. Non-discrimination must be a guiding principle in its own right to ensure appropriate weight is given to human rights in triage decisions.
  2. The Triage Protocol must not rely on medical utility as its primary guiding principle, as it leads to adverse consequences for persons with disabilities, and fails to consider systemic health discrepancies.
  3. The framework must shift from a focus on the intention not to discriminate to whether adverse impact (discrimination) flows from the approaches embodied in Triage Protocol 2.

 

Concerns regarding the process of Triage Protocol development

 

Follow-Up Communication to March Triage Protocol

It is imperative that Ontario Health notify the recipients of the first draft that it is not to be operationalized or applied.

In the cover letter to Triage Protocol 2, the Bioethics Table states that the March 28, 2020 Triage Protocol was sent out to hospitals by Ontario Health. In particular, it states that “[t]he draft recommendations were shared by Ontario Health with hospitals on March 28, 2020 to help hospitals prepare for the possibility of a major surge in critical care demand and to prevent catastrophic health outcomes as have been seen in other jurisdictions.”[24]

We are deeply concerned that, at the time it was delivered and distributed to hospitals and medical associations at least, it was not made clear to the recipients that these recommendations and the Triage Protocol in which they are housed were a draft.[25] The potential harm of this oversight cannot be overstated. Given the highly problematic and discriminatory nature of the first draft, the concern is that should hospitals hit surge prior to the approval or authorization of an improved version, then doctors will rely on the previous version, which may lead to devastating and disproportionate impacts on persons from marginalized communities.

Case in point: in or around May 2020 it was brought to ARCH’s attention that at least three different medical organizations had published the draft Triage Protocol on their websites as a resource for its members – including doctors, nurses and other health professionals – as if this was a finalized document.

Around the middle of May 2020, ARCH reached out to these three organizations, namely the Nurse Practitioners’ Association of Ontario (NPAO), CorHealth Ontario, and Canadian Association of Emergency Physicians (CAEP), and requested that they immediately remove the draft Triage Protocol from their websites in light of the Provincial Government’s statement that this was a draft and not a finalized document. Each organization complied.

It is beyond ARCH’s reach, however, to contact every single hospital and medical association to which the Triage Protocol was delivered on March 28, 2020 or soon thereafter. Frankly, it is also beyond ARCH’s responsibility to do same. Rather, it is incumbent upon Ontario Health to discharge this responsibility.

Accordingly, it is imperative that Ontario Health immediately contact every recipient of the original Triage Protocol to (a) ensure that the hospital/medical association is aware that the March 28, 2020 version is a draft that is not to be relied upon nor implemented, and (b) to ensure that no hospital staff or medical organization members are referring to or relying on that version of the Triage Protocol.

Clear and Plain Language Versions of the Triage Protocol

It is understood that the primary purpose of the Triage Protocol is to provide guidance to medical professionals and healthcare workers in the event that Ontario hits surge conditions. Simultaneously, however, it must be recognized that it is members of the public who will be subject to and impacted by decisions made pursuant to this Triage Protocol. Consequently, the public is entitled to know how doctors are expected to make these decisions and the basis upon which these decisions are made.

For clarification, clear language and plain language are two distinct concepts and are not to be used interchangeably. Clear language refers to the use of straightforward, direct language to convey ideas in a simple manner making the document accessible to everyone. Plain language is the use of techniques, like providing concrete examples and using clear language, to ensure that people with intellectual and/or developmental disabilities are able to access the information.

Accordingly, it is recommended that both clear language and plain language versions of the Triage Protocol be developed and made available to the public to disseminate this information in an accessible manner to as wide an audience as possible. It is imperative that any and all versions of the Triage Protocol be made accessible. This means that not only should the final version of the Triage Protocol also be produced in clear and plain language versions, but any drafts developed along the way as well.[26]

Wider Consultations Needed

Wider consultations on a document such as Triage Protocol 2, which will have wide and varying effects, including consequences that may be detrimental in nature, is imperative. These consultations, however, cannot be formalistic nor performative.

Consultations are imperative in order to ensure that the perspectives of persons who are being disproportionately impacted by COVID-19 and who are, in turn, disproportionately impacted by the Triage Protocol are considered and incorporated. This, of course, includes the perspective of persons with disabilities, Indigenous persons and persons from racialized communities including Black persons and persons from other racialized communities. Moreover, wider consultations ensure that a multi-dimensional lens, including one that emphasizes intersectionality, is applied when drafting any Triage Protocol.

It is important to note, however, that in order to have these consultations be truly accessible and receive feedback from relevant stakeholders, including persons with disabilities, a clear language and plain language versions of the Triage Protocol must be made available to said stakeholders (as stated above). The absence of an accessible version dilutes the purpose of these consultations, namely, to receive feedback from persons from disability communities.

 

Process-related Recommendations:

  1. Ontario Health must communicate to every hospital and medical association/organization that the Triage Protocol dated March 28, 2020 is not be relied upon or implemented.
  2. Clear language and plain language versions of all drafts and the final version of the Triage Protocol are to be produced and distributed widely so that all relevant stakeholders are able to understand the information and provide feedback.
  3. Wider consultations are to be undertaken by the Bioethics Tables to ensure that the perspectives of persons with lived experience from marginalized and disproportionately impacted communities are heard and inform the drafting of the Triage Protocol.

 

Substantive Concerns regarding the Triage Protocol

 

The Continued Inclusion of the Clinical Frailty Scale

The Clinical Frailty Scale (CFS) must be entirely removed from Triage Protocol 2.[27] While Triage Protocol 2 removes the visual chart of the CFS, it is still referred to in the exclusion criteria chart[28], albeit more infrequently than in the previous draft, and is included in Appendix C as a Triage Criteria Tool.[29]

As already submitted in ARCH’s Brief dated May 13 2020, the CFS is included in the Triage Protocol to serve a purpose for which it was neither designed nor developed. The application of the CFS to persons with disabilities without the context of a pandemic is inappropriate. The application of the CFS to persons with disabilities within the context of a pandemic is catastrophic and devastating.

It is understood that the goal and intention of the CFS is to create a situation where all patients are treated fairly by applying the same metric across the board in a non-discriminatory manner,[30] this belief, however, is not only misguided, but a deductive and logical fallacy. In applying the CFS as it is, to all patients, the able-bodied will always score lower (for example, a 1 on the CFS) and persons with disabilities will always score higher deeming them frail.[31] In a pandemic setting this means that the able-bodied person will always be prioritized for care over persons with disabilities. This is not fairness nor is it treatment on an equitable basis.

Several jurisdictions have already recognized the error in initially including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committing to an individualized assessment of each patient. For example, in the United Kingdom,[32] the use of the CFS was challenged and the government conceded the problematic nature of the CFS for the purposes of allocating critical care resources.[33] Despite this, reliance on this problematic scale persists in Triage Protocol 2.

Recalling that intention is of no consequence – it is irrelevant whether, with the application of the CFS, a doctor, healthcare worker, hospital, medical organization or government department intended to discriminate against a specific demographic of patients or not. Rather, of importance is the adverse impact experienced by a person with a disability by being subject to a seemingly neutral metric that will disproportionately place them at a disadvantage

The inclusion of the CFS in the Triage Protocol may not have been accompanied by an intention to discriminate, and yet the adverse impact experienced by persons with disabilities is real and tangible. In short, the adverse impact that flows from the inclusion and application of the Triage Protocol renders it discriminatory, regardless of the initial intention.

Survivability Beyond COVID-19

It is inappropriate to rely on ineligibility criteria that extends beyond the recovery of the acute COVID-related event.[34] It is arbitrary and invites a higher risk of ableist value assumptions about the quality of a person’s life, which will inevitably cause a disproportionate adverse impact on persons with disabilities.[35]

Triage Protocol 2 states that a person would be ineligible for critical care where they have a low probability of surviving “more than a few months” beyond recovering from COVID. Triage Protocol 2 further explains that a person would be ineligible if they were “very likely to die in the near future if they recovered from their critical illness.”[36]

First, “more than a few months” is a speculative and subjective assessment, which could mean a number of different things to different doctors making these decisions. Second, this criteria goes beyond an assessment of the person’s chance of survival of the acute COVID-19-related event, and invites ableist presumptions about chances of survival or quality of life after Intensive Care Unit (ICU) treatment to seep into clinical evaluations.[37] These types of assessments tend to disproportionately affect people with disabilities.[38]

As stated by Profs. Trudo Lemmens and Roxanne Mykitiuk:

While the protocol does not clarify the time frame used to determine the risk of ‘mortality’ (i.e. mortality by when?), it goes beyond survival in the ICU, and includes the likelihood of survival months after ICU treatment. As mentioned above, the further one moves beyond ICU discharge, the more a policy will disproportionately impact on the elderly and people with disabilities.[39]

It is clear that survivability beyond the acute COVID-related incident is subjective, arbitrary, and risks discriminating against persons with disabilities. As such, it must not be relied on as a criteria of ineligibility.

 

Random Selection

Safeguards must be put into place to ensure that random selection is not polluted by unconscious biases and prejudices. In an effort to uphold the principle of fairness, Triage Protocol 2 suggests applying the method of random selection in situations where it is not possible to rely on medical utility to make clinical decisions.[40] The aim, according to Triage Protocol 2, is to mitigate against the potential of explicit or unconscious bias in decision-making.[41]

The concern is how random selection will be carried out in practice as any decision-making is always subject to human and inherent bias. Triage Protocol 2 is vague as to how random selection will translate into practice, only noting that “a record of the outcome of the process of randomization should be documented.”[42]

In order to remedy against the influence of inherent bias, safeguards must be put in place to ensure a truly random selection process. It is also important to ensure that accountability and transparency are pillars in any random selection process implemented pursuant to the Triage Protocol. It is of utmost importance that the Triage Protocol be specific and thorough in how the random selection process is to be applied. As it stands at the moment, there is very little guidance and direction on this point which will lead to different practices of random selection across hospitals.[43]

Dispute Resolution Mechanisms

It is imperative that Triage Protocol 2 includes a dispute resolution mechanism. An appeals procedure is an essential procedural aspect of due process, which cannot be set aside in pandemic conditions.

In addressing the possibility of a dispute resolution process for patients/families who disagree with the outcome of a triage decision, Triage Protocol 2 suggests that a formal appeal process “may not be feasible or appropriate.”[44] Instead, it offers to patients who have been subject to triage decisions that the hospital “[c]ommunicat[e] the rationale” to the patient/family and “respond […] compassionately to patient or family concerns.”[45] It also suggests that it will conduct a retrospective, global review by monitoring triage data, and reviewing and revising the approach to ensure it is not leading to adverse consequences.[46] With respect, while these elements are important parts of a triage approach, this is not an acceptable substitute for individual due process.

To the contrary, it is possible and necessary to include an individual dispute resolution mechanism in Triage Protocol 2. A real-time review of individual complaints is vital for ensuring that no individual has been treated unjustly by the decision-makers and so that a new decision can be implemented before irreparable harm is done. This would allow the patient or family member to seek a remedy before a potentially discriminatory and irreversible decision is carried out.

Other jurisdictions recognize the importance of an appeal framework within a triage approach.[47] The University of Virginia Health System Ethics Committee, for example, recommends that triage decisions be supported by an appeal process in order “[t]o promote the ethical principles of trustworthiness, equity, fairness, and justice.”[48]

It has been noted that while global review of the triage approach is important for accountability and on-going improvement of the triage process, it “does not protect vulnerable patients, because it does not allow for timely intervention in individual triage decisions.”[49] As the Indiana State Department of Health noted in its Crisis Standards of Patient Care Guidance, “while meticulous record keeping is desirable, in such cases, it is ethically important to prioritize energies spent in the direct saving of lives over those spent keeping records and in post‐hoc analyses.”[50]

 

Duty to Accommodate

It is imperative that Triage Protocol 2 includes a section that focuses on providing specific guidance and directions about the duty to accommodate. Triage Protocol 2 makes only brief references to the provision of accommodations for persons with disabilities accessing the Triage Protocol and decisions about critical care resources. These references are not specific nor directive.[51]

Disability-related accommodations for the purposes of accessing health care services are a basic tenet of human rights law.[52] Disability-related accommodations ensure that persons with disabilities have equal opportunity to receive, understand, and benefit from critical care.

Other jurisdictions have acknowledged the importance of providing disability-related accommodations to persons to ensure they have equal access to health care during the COVID-19 pandemic. The British Medical Association’s guidance for COVID-19 reiterates that hospitals have a positive obligation to ensure that persons with disabilities are able to access and take advantage of public services in a manner as closely as reasonably possible to someone without disabilities.[53] Similar directives can be found in other ICU decision-making guidance in jurisdictions like Tennessee.[54]

Accommodations may include interpretation, alternative and augmentative communication, support persons, or other supports that allow a person to gain equal access to medical services.[55] These must be provided to the patient during the application of the Triage Protocol and the duration of the patient’s time at the hospital.

Triage Protocol 2 should include detailed directives regarding how accommodations are provided in the context of a pandemic. Disability-related needs vary depending on the person with a disability and may fluctuate throughout a period of time. Accordingly, and as discussed in the preceding paragraph, it is highly recommended that best practices be included such as asking each patient in the emergency room and/or upon admission to the hospital if they require disability-related accommodation and, if they do, what those accommodations are. These patient-specific accommodations should be recorded in the chart and applied by every healthcare worker that comes into contact with the patient. Practices such as these that are in line with human rights obligations will also assist in ensuring that all appropriate accommodations are in place when any assessments are made pursuant to the Triage Protocol.

Substantive Recommendations:

 

  1. The Triage Protocol must not rely on the Clinical Frailty Scale in any capacity.
  2. The Triage Protocol must eliminate eligibility criteria that considers survivability beyond the acute COVID related event.
  3. Triage Protocol 2 should provide clear and specific guidance and direction as to how random selection should be carried out.
  4. The Triage Protocol must include an individual dispute resolution process to ensure fairness, accountability, and due process.
  5. The Triage Protocol must include a section dedicated to providing guidance and direction on the duty to accommodate.

 

Conclusion:

In sum, there continue to be concerns with Triage Protocol 2 that must be rectified to ensure that any response to a surge in COVID-19 cases does not adversely and disproportionately impact persons from marginalized communities including but not limited to persons from disability communities, elderly persons, Indigenous persons, Black persons and persons from other racialized communities.

The above submissions address a number of those concerns and provide Recommendations for reform. The Recommendations herein aim to align the Triage Protocol with human rights law and ensure that marginalized communities are not disproportionately impacted. The Recommendations impact the overall structure and guiding principles of the document, those related to the process within which the Triage Protocol has been developed, and those related to the substantive concerns, such as the use of the Clinical Frailty Scale or survivability beyond the acute event as metrics to assess patients, the use of random selection, the lack of a dispute resolution mechanism, and the importance of upholding the duty to accommodate.

Please do not hesitate to contact us should you wish to discuss any of these Recommendations in further and greater detail.

Sincerely,

 

ARCH DISABILITY LAW CENTRE

 

Robert Lattanzio

Executive Director

Mariam Shanouda

Staff Lawyer

Jessica De Marinis

Staff Lawyer

[1] Critical Care Triage for Major Surge in the COVID-19 Pandemic: Updated Recommendations, delivered and dated July 7, 2020 [“Triage Protocol 2”].

[2] ARCH would like to especially and sincerely thank members of its Advisory Committee for engaging in extensive discussion and providing thoughtful guidance and expertise on the important issues raised by the Triage Protocol. ARCH’s Advisory Committee, in alphabetical order, includes: Chris Beesley, Executive Director at Community Living Ontario, Laura LaChance, Interim Executive Director at Canadian Down Syndrome Society, Trudo Lemmens Professor, Scholl Chair in Health Law and Policy at University of Toronto Law School, David Lepofsky, Chair of the AODA Alliance, Leanne Mielczarek, Executive Director of Lupus Canada, Elizabeth Mohler, Board Member at Citizens With Disabilities – Ontario, Roxanne Mykitiuk, Disability Law, Health Law, Bioethics and Family Law Professor at Osgoode Hall Law School, Tracy Odell, Executive Director of Citizens with Disabilities – Ontario, Dr. Homira Osman, Director of Knowledge Translation & External Engagement at Muscular Dystrophy Canada, and Wendy Porch, Executive Director at the Centre for Independent Living Toronto.

[3] ARCH submissions, dated May 13, 2020 [“ARCH May Submissions”] available online here: https://archdisabilitylaw.ca/wp-content/uploads/2020/05/ARCH-Lttr-re-Clinical-Triage-Protocol-May-13-2020-PDF.pdf

[4] Critical Care Triage for Major Surge in the COVID-19 Pandemic dated March 28, 2020.

[5] This point was succinctly made by Ms. Jennifer Gibson in her introduction providing background and context on the drafting of the Triage Protocol.

[6] Law Commission of Ontario, The Law As It Affects Persons With Disabilities. Preliminary Consultation Paper: Approaches to Defining Disability [2009], online: Law Commission of Ontario www.lco-cdo.org

[7] Ont Human Rights Comm v Simpson-Sears, [1985] 2 SCR 536 [“Simpson-Sears”].

[8] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [“Eldridge”].

[9] Simpson-Sears, supra note 7.

[10] Professor Kimberlé Crenshaw introduced the term intersectionality in 1989 to address the marginalization of Black women within not only antidiscrimination law but also in feminist and antiracist theory and politics. The term was elaborated upon by Professor Crenshaw in 1991 and has been adopted by human rights law.

[11] Baylis-Flannery v. DeWilde (No. 2), (2003) 48 CHRR D/197 (Ont HRT) at para 144.

[12] AODA Alliance, A Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis does not Discriminate Against Patients with Disabilities, April 14 2020, online: https://www.aodaalliance.org/whats-new/a-discussion-paper-on-ensuring-that-medical-triage-or-rationing-of-health-care-services-during-the-covid-19-crisis-does-not-discriminate-against-patients-with-disabilities/ [“AODA Alliance April Discussion Paper”]. See also, AODA Alliance, In a Second COVID-19 Wave, if there aren’t enough Ventilators for all Patients Needing them, a new Draft Ontario Protocol Would Continue to Discriminate Against COVID-19 Patients with Disabilities, July 16 2020, online: https://www.aodaalliance.org/whats-new/in-a-second-covid-19-wave-if-there-arent-enough-ventilators-for-all-patients-needing-them-a-new-draft-ontario-medical-triage-protocol-would-continue-to-discriminate-against-covid-19patients-with-d/

[13] Triage Protocol 2, supra note 1 at 2.

[14] Şerife Tekin, Health Disparities in COVID-19 Triage Protocols, April 8, 2020, Impact Ethics, online: https://impactethics.ca/2020/04/08/health-disparities-in-covid-19-triage-protocols/

[15] Tekin, ibid.

[16] Tekin, ibid.

[17] See HHS Office for Civil Rights in Action, Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19), march 28, 2020, online: https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf . See also Peterson, Andrew, Emily A Largent, Emanuel Hart & Jason Karlawish, “Ethics of reallocating ventilators in the covid-19 pandemic” BMJ 2020;369:m1828, online: https://www.bmj.com/content/369/bmj.m1828

[18] New York State Task Force on Life and the Law, New York State Department of Health, Ventilator Allocation Guidelines, November 2015 at 41, online: https://www.health.ny.gov/regulations/task_force/reports_publications/docs/ventilator_guidelines.pdf

[19] Simpson-Sears, supra note 7 at paras 12-13.

[20] Ibid.

[21] Triage Protocol 2, supra note 1 at 2.

[22] Ibid at 3.

[23] An apt example of this, of course, is the inclusion of the Clinical Frailty Scale in the Triage Protocol 2. This is further explored below.

[24] Correspondence from Ontario COVID-19 Bioethics Table to Roundtable Participants dated July 7, 2020 at 1.

[25] This is the second time ARCH raises this concern. It was first raised in ARCH’s May 13, 2020 submissions where we stated: A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations. See ARCH May Submission, supra note 3.

[26] At the July 15, 2020 Round-table discussion co-convened by the Bioethics Table and the Ontario Human Rights Commission, Ms. Jennifer Gibson clarified that she had been advised that there is currently a clear language version of the Triage Protocol being developed.

[27] These submissions are made in addition to ARCH’s previous objections to the inclusion of the Clinical Frailty Scale. See ARCH May Submissions, supra note 3.

[28] Triage Protocol 2, supra note 1 at 7.

[29] Ibid at 20.

[30] Lastly, the July Triage Protocol provides an explanatory note following the exclusion criteria chart noting the purpose for which the CFS is to be used. This qualifier does provide some clarification; however, in saying that, the Bioethics Table still has not demonstrated why the inclusion of the CFS is of necessity in the first place. Secondly, the explanatory note focuses on the intention of the CFS rather than the impact.

[31] A salient point here, of course, is that frailty and disability are two distinct issues – a distinction that the CFS and the Triage Protocol both fail to acknowledge.

[32] Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/

[33] The Bioethics Table’s attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

[34] A helpful and concrete example of this can be found in the AODA Alliance April Discussion Paper, supra note 12. The example is as follows:

A patient with a history of cancer contracts serious COVID-19 symptoms and goes to hospital for emergency treatment. They need a ventilator. The hospital has too few ventilators to meet the needs of all its COVID-19 patients who need ventilators.

A physician is considering which patients will get a ventilator. The physician decides that the cancer patient’s long-term future lifespan may be shorter due to their cancer than other patients who have no disability. That physician thinks that this should be a factor weighing against that cancer patient getting the use of a ventilator.

Such decisions should not be based on the physician’s predictions, whether accurate or stereotype-based, about the eventual long-term lifespan of that patient unrelated to the COVID-19 diagnosis. The hospital or physician deciding who will get the ventilator must not weigh or hold against that patient with a disability the fact of their disability or its perceived impact on their long-term lifespan.

[35] Trudo Lemmens, Quebec’s clinical triage protocol opens door to discrimination, June 15, 2020, online: https://policyoptions.irpp.org/magazines/june-2020/quebecs-clinical-triage-protocol-opens-door-to-discrimination/

[36] Triage Protocol 2, supra note 1 at 5.

[37] Roxanne Mykitiuk & Trudo Lemmens, Assessing the value of a life : COVID-19 triage orders mustn’t work against those with disabilities, April 9, 2020, CBC online: https://www.cbc.ca/news/opinion/opinion-disabled-covid-19-triage-orders-1.5532137;

[38] Trudo Lemmens & Roxanne Mykitiuk, “Disability Rights Concerns and Clinical Triage Protocol Development During the COVID-19 Pandemic” 2020 HLCJ 40:4 at 107.

[39] Lemmens & Mykitiuk, ibid.

[40] Triage Protocol 2, supra note 1 at 8.

[41] Ibid.

[42] Ibid.

[43] It was noted at the July 15 Round-table by Ms. Jennifer Gibson that the aim of the Triage Protocol is to ensure that the same treatment and approach are taken across all hospitals. With respect, random selection as it is currently set out in Triage Protocol 2 fails to satisfy this objective as it is too vague and lacks direction to hospitals and healthcare workers.

[44] Triage Protocol 2, supra note 1 at 12.

[45] Triage Protocol 2, ibid.

[46] Triage Protocol 2, ibid.

[47] University of Virginia Health System Ethics Committee, “Ethical Framework and Recommendations for COVID-19 Resources Allocation When Scarcity is Anticipated” March 26, 2020 online: https://med.virginia.edu/biomedical-ethics/wp-content/uploads/sites/129/2020/03/Ethical-Framework-for-Co-vid-19-Resources-Allocation-3.26.20.pdf

[48] Ibid at 7

[49] Ibid at 233.

[50] Indiana State Dep’t of Health, Crisis Standards of Care Community Advisory Group, Crisis Standards of Patient Care Guidance with an Emphasis on Pandemic Influenza: Triage and Ventilator Allocation Guidelines, 13 (2014) http://www.phe.gov/coi/Documents/Indiana%20Crisis%20Standards%20of%20Care%202014.pdf

[51] Triage Protocol 2, supra note 1 at 3, 4 and 11.

[52] Eldridge, supra note 8.

[53] British Medical Association, “COVID-19 – ethical issues. A guidance note” (2020) at 7, online (pdf): BMA https://www.bma.org.uk/media/2360/bma-covid-19-ethics-guidance-april-2020.pdf .

[54] Tennessee, Tennessee Altered Standards of Care Workgroup, Guidance for the Ethical Allocation of Scarce Resources during a Community-Wide Public Health Emergency as Declared by the Governor of Tennessee (Version 1.6) (2020) online: Tennessee State Government

https://www.tn.gov/content/dam/tn/health/documents/cedep/ep/Guidance_for_the_Ethical_Allocation_of_Scarce_Resources.pdf .

[55] See AODA Alliance April Discussion Paper, supra note 12:

More than one hospital patient needs a ventilator. There are not enough ventilators for all the patients who need one at that hospital. At least one of the patients who needs a ventilator has disabilities. Some of the patients who need a ventilator have no apparent disabilities.

One of the patients with disabilities who needs the ventilator will need disability-related accommodations in hospital in order to receive health care services, such as a deaf patient who needs Sign Language interpreters to effectively communicate with hospital staff. The emergency room doctor, deciding who will get the ventilator, is concerned that the patient with disabilities who needs such accommodations in the hospital setting will pose a greater demand on the hospital’s services and resources, if they survive, than would other patients who need the ventilator.

The hospital or physician who is deciding who will get to use the ventilator must never use a patient’s need for disability-related accommodations as a factor or reason for refusing them the ventilator.



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AODA Alliance Endorses ARCH Disability Law Centre’s Brief that Shows in Even More Detail How the Ford Government’s Revised Draft Medical Triage Protocol, Now Undergoing Consultation, Would Discriminate Against COVID-19 Patients with Disabilities If There Were Not Enough Ventilators for All Patients Needing Them


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

July 24, 2020

SUMMARY

The ARCH Disability Law Centre has made public a superb new brief to the Ford Government on the serious disability human rights problems with the revised draft medical triage protocol on which the Ford Government is now holding a consultation. The AODA Alliance strongly endorses ARCH’s brief and congratulates ARCH on excellent work. ARCH’s brief is set out below.

The Ford Government has still not rooted out the danger to people with disabilities that was created by the deeply flawed March 28, 2020 medical triage protocol that Ontario Health sent to all hospitals last spring. That protocol lets hospitals violate basic human rights of COVID-19 patients with disabilities if a surge in COVID-19 cases means there are not enough ventilators for all critical patients needing them. A number of disability organizations including the AODA Alliance have been pressing the Ford Government for over three months to fix the mess it thereby created.

The July 16, 2020 AODA Alliance Update made public a revised draft of the Government’s medical triage protocol, on which a consultation is now being held. We announced at that time that this revised draft medical triage protocol still has serious human rights problems from the disability perspective. We submitted that Update to the Ford Government’s advisory committee that is consulting on possible changes to that medical triage protocol.

Since then, on July 20, 2020, the ARCH Disability Law Centre submitted its new brief, set out below, to the Government’s advisory committee. The ARCH Disability Law Centre had a committee of human rights experts giving it input as it formulated this brief, including the AODA Alliance. The ARCH brief echoes and builds upon concerns that we have raised, and adds additional concerns, with which we entirely agree.

More Background

Check out:

* The July 16, 2020 AODA Alliance Update, that sets out serious disability human rights problems with the revised draft medical triage protocol.

* The text of the revised draft medical triage protocol.

* The April 7, 2020 virtual public forum on the impact of COVID-19 on people with disabilities, jointly organized by the AODA Alliance and the Ontario Autism Coalition. During this event, ARCH Disability Law Centre executive director Robert Lattanzio first made public the existence of the original March 28, 2020 medical triage protocol, and the disability human rights problems that it creates.

* The April 8, 2020 open letter, spearheaded by ARCH, identifying the serious disability human rights violations in the original March 28, 2020 medical triage protocol.

* The AODA Alliance’s April 14, 2020 Discussion Paper on what the medical triage protocol should include. In the three months since this was made public, no negative feedback was received about its recommendations.

* The Ford Government’s April 21, 2020 announcement that it would consult community and human rights experts on the medical triage protocol. It claimed that the March 28, 2020 protocol was only a draft even though it was never marked draft.

* The ARCH Disability Law Centre’s detailed May 13, 2020 analysis of the serious disability human rights violations created by the medical triage protocol, which the AODA Alliance endorses.

* To learn more about the many barriers that impede patients with disabilities in Ontario’s health care system, read the AODA Alliance’s February 25, 2020 Framework on what the promised Health Care Accessibility Standard should include, to be enacted under the Accessibility for Ontarians with Disabilities Act.

* The AODA Alliance’s health care web page, to learn more about the advocacy efforts to tear down the barriers facing people with disabilities in Ontario’s health care system.

* The AODA Alliance’s COVID-19 web page details the coalition’s efforts to advocate for the needs of people with disabilities during the COVID-19 pandemic.

MORE DETAILS

Text of the ARCH Disability Law Centre’s July 20, 2020 Brief on the Ford Government’s Revised Draft Medical Triage Protocol

Originally posted at http://archdisabilitylaw.ca/resource/submissions-and-recommendations-regarding-ontarios-triage-protocol-draft/ 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 to [email protected]
July 20, 2020
Joint Centre for Bioethics
University of Toronto
155 College Street, Suite 754
Toronto, ON M5T 1P8
Canada

Dear Ms. Gibson and Mr. Smith:

Re: ARCH Disability Law Centre Submissions and Recommendations Regarding Ontario’s Triage Protocol Draft dated July 7, 2020

The within document is the written submission of ARCH Disability Law Centre (ARCH) in response to a review of the draft Triage Protocol dated and delivered July 7, 20201 and from the discussion held at the July 15, 2020 Roundtable, co-convened by the Bioethics Table and the Ontario Human Rights Commission.2 We provide these submissions in addition to our previous submissions dated May 13, 2020,3 and not in substitute of them.

Background

While Triage Protocol 2 demonstrates some improvement over the first version,4 there continues to be alarming issues that must be rectified to ensure that any response to a surge in COVID-19 cases does not adversely and disproportionately impact persons from marginalized communities including but not limited to persons with disabilities, elderly persons, Indigenous persons, Black persons and persons from other racialized communities. Representatives from various disability communities and organizations have made clear their concerns with both iterations of the Triage Protocol.

For ease of reference, the submissions that follow are divided into three sections. First, these submissions address the framework of Triage Protocol 2 this captures the issues related to the overall structure and guiding principles of the document. The second section addresses procedural issues this includes issues with the process of the development of the Triage Protocol and the lack of transparency. The third section addresses substantive issues, which includes the use of Clinical Frailty Scale as a metric to assess patients, the suggestion to use random selection as a method of fairness, and the importance of ensuring that a dispute resolution mechanism is in place.

ARCH submits the following recommendations to ensure that Triage Protocol 2 does not have an adverse impact on persons with disabilities:

1. Non-discrimination must be a guiding principle in its own right to ensure appropriate weight is given to human rights in triage decisions.
2. The Triage Protocol must not rely on medical utility as its primary guiding principle, as it leads to adverse consequences for persons with disabilities, and fails to consider systemic health discrepancies.
3. The framework must shift from a focus on the intention not to discriminate to whether adverse impact (discrimination) flows from the approaches embodied in Triage Protocol 2.
4. Ontario Health must communicate to every hospital and medical association/organization that the Triage Protocol dated March 28, 2020 is not be relied upon or implemented.
5. Clear language and plain language versions of all drafts and the final version of the Triage Protocol are to be produced and distributed widely so that all relevant stakeholders are able to understand the information and provide feedback.
6. Wider consultations are to be undertaken by the Bioethics Tables to ensure that the perspectives of persons with lived experience from marginalized and disproportionately impacted communities are heard and inform the drafting of the Triage Protocol.
7. The Triage Protocol must not rely on the Clinical Frailty Scale in any capacity.
8. The Triage Protocol must eliminate eligibility criteria that considers survivability beyond the acute COVID-related event.
9. The Triage Protocol must provide clear and specific guidance and direction as to how random selection should be carried out.
10. The Triage Protocol must include an individual dispute resolution process to ensure fairness, accountability, and due process.
11. The Triage Protocol must include a section dedicated to providing guidance and direction on the duty to accommodate.

ARCH’s Recommendations are reproduced below following a discussion and rationale for each at the conclusion of each section.

Concerns with the overall Framework and Structure of the Triage Protocol

As noted at the July 15 Roundtable by members of the Bioethics Table, while it is not necessarily contemplated or envisioned that this Triage Protocol will be used beyond the COVID-19 pandemic, it will most likely inform responses to future pandemics.5 It is beyond a doubt the Triage Protocol is an important document that will have long and consequential effects, some of which may be devastating and detrimental. Accordingly, it is imperative that such a document, despite its primary purpose being to provide direction to medical professionals, must not be framed solely within the medical model,6 but also within a human rights framework. This is to ensure that the benefits of any emergency response are also afforded to marginalized communities, rather than at their expense.

In its current version, the Triage Protocol lists a number of ethical principles to guide and inform allocation of scarce critical care resources. These principles are to be considered the starting point, the foundation of any decisions made about critical care in the context of a major surge of COVID-19. These guiding principles, accordingly, seep into and colour all aspects of decisions about scarce resources, which are admittedly difficult decisions with grave significance and great public importance. As such, it is imperative that the principles that guide these decisions are strong, principled, and align with a human rights framework.

In short, the framework within which this Triage Protocol is being drafted must be reformed and reshaped. Without this necessary reformation, discrimination will continue to plague the Triage Protocol. As such, it is recommended that in drafting the Triage Protocol, the authors view the issues from a human rights lens, and in particular from a disability rights and intersectionality lens.

The Right to be Free from Discrimination

The Triage Protocol must be guided by non-discrimination in its own right. The right to be free from discrimination is a quasi-constitutional right afforded to every Ontarian and Canadian,7 including when receiving health care services and medical attention.8 It is a right that is elevated above other legal rights and restrictions.9

A patient’s right to be free from discrimination is not given its due weight in Triage Protocol 2. Guiding Principle 4, Equity and Respect for Human Rights, where a mention of a patient’s human rights is briefly made, is problematic for two reasons. First, it places the right to be free from discrimination on the same pedestal as other guiding principles, including beneficence and accountability. This is inappropriate, namely for the aforementioned reason that the right to be free from discrimination is a quasi-constitutional right, whereas beneficence, for example, is not. Second, Guiding Principle 4 is problematic because it collapses Equity and Human Rights and treats them as the same, or interchangeable, concepts which they are not.

Reframing the Triage Protocol 2 to reflect that the right to be free from discrimination is separate from, and superior to, the guiding principles will more accurately signal how fundamental and integral human rights law must be to the decision-making process. Moreover, this reframing will also account for, and acknowledge, intersectionality and how individuals who identify with multiple protected grounds by human rights law are impacted by the Triage Protocol.

Intersectionality10 is a term used to refer to instances where persons may experience discrimination on more than one human rights protected ground simultaneously. The importance of an intersectional lens has been emphasized by the Human Rights Tribunal of Ontario which has stated that an awareness of compound discrimination is necessary in order to avoid a narrow and one-dimensional perspective.11

In the context of the Triage Protocol, it must be recognized that in treating patients who contract COVID-19 and require critical care within a surge, doctors must be cognizant of the compound discrimination that for example, a Black woman with a disability may experience. Accordingly, this section in the Triage Protocol should include a concrete explanation of what non-discrimination means and how it should be applied in a triage setting, such as disability, age, race, or any other protected ground cannot factor, even 1%, into triage decisions. 12
In sum, the Triage Protocol must be framed within a human rights approach and place the principle of non-discrimination at the forefront, in order to set the proper foundation for triage decisions regarding the allocation of scarce resources and to give effect to the quasi-constitutional status of these rights.

Medical Utility is not a Proper Guiding Principle

Medical utility as a guiding ethical principle in the Triage Protocol is problematic. As set out in Triage Protocol 2, medical utility strives to create the maximum good for the maximum number of people.13 While appearing facially neutral, utilitarianism actually often leads to adverse impacts for persons with disabilities.14 By virtue of this principle, those that are not able-bodied are less likely to be part of the group that receives the good in question.

Utilitarian frameworks do not consider existing systemic health disparities.15 Many persons with disabilities do not have equitable access to health care or health care outcomes. Many require additional resources to achieve equal health outcomes due to the need for disability-related accommodations, or due to systemic social inequities and/or intersectionality. But where a person’s health outcomes may be influenced by these factors, utility has the unintended consequence of disregarding individual needs.16 A purely medical utility model has been criticized as ruthless17 and at odds with societal values of defending and advancing the rights of marginalized communities.18

The problems with medical utility being a guiding factor are compounded when one considers that Triage Protocol 2 has attempted to distance itself from the pre-existing health and social inequities experienced by persons with disabilities and other marginalized groups in Ontario. At page 4 of Triage Protocol 2, it states that the pre-existing health and social inequities that have been revealed by the COVID pandemic will not be resolved by a triage approach.

Instead Triage Protocol 2 suggests that proactive measures must be taken in other sectors in order to prevent vulnerable groups from disproportionately contracting COVID. In effect, Triage Protocol 2 is offloading responsibility for these disproportionate impacts and distances itself from the systemic and pervasive barriers to health care in our society. This distancing is troubling, given that the very guiding principles that the triage approach is based on are likely to perpetuate and compound adverse health outcomes.

While the Triage Protocol cannot be expected to right all the systemic barriers experienced by marginalized communities, it cannot be permitted to perpetuate and compound these same inequities. Recognition of those pre-existing inequities is an important contextual factor that must be incorporated into and compensated for in the triage approach. This is an objective that is difficult to reconcile with pure medical utility being a primary guiding principle.

Focus on Impact

The Triage Protocol as a whole is written from a lens of intention without any focus on the impact that decisions made will have on patients from marginalized communities. It is well-established in human rights law that the intention to, or not to, discriminate is inconsequential and not a governing factor in determining whether or not a person has experienced discrimination.19 Rather, it is the effect or impact experienced by the person alleging discrimination that is the focus of any human rights analysis.20

It is clear that neither the first version of the Triage Protocol nor Triage Protocol 2 contemplate the adverse impact that will be experienced by persons from marginalized communities, including persons with disabilities, flowing from decisions made pursuant to said Protocol. The inclusion of guiding ethical principles like medical utility21 and (formalistic) fairness22 demonstrate that the Triage Protocol inappropriately emphasizes the doctor’s intention, without turning its mind to the adverse impact that will be experienced by the person with a disability.23 The result is a Triage Protocol with an approach that is problematic and discriminatory in nature.

Accordingly, a shift in the drafting framework must occur. The important question is not, whether the triage approach appears to be neutral and well-intentioned, but rather, whether marginalized communities could be adversely impacted. This shift in focus should lead to a shift in perspective when contemplating the guiding ethical principles; for example, when the focus is impact and not intention then substantive fairness, rather than formalistic fairness, becomes the objective.

Framework and Structural Recommendations:

1. Non-discrimination must be a guiding principle in its own right to ensure appropriate weight is given to human rights in triage decisions.
2. The Triage Protocol must not rely on medical utility as its primary guiding principle, as it leads to adverse consequences for persons with disabilities, and fails to consider systemic health discrepancies.
3. The framework must shift from a focus on the intention not to discriminate to whether adverse impact (discrimination) flows from the approaches embodied in Triage Protocol 2.

Concerns regarding the process of Triage Protocol development

Follow-Up Communication to March Triage Protocol

It is imperative that Ontario Health notify the recipients of the first draft that it is not to be operationalized or applied.

In the cover letter to Triage Protocol 2, the Bioethics Table states that the March 28, 2020 Triage Protocol was sent out to hospitals by Ontario Health. In particular, it states that [t]he draft recommendations were shared by Ontario Health with hospitals on March 28, 2020 to help hospitals prepare for the possibility of a major surge in critical care demand and to prevent catastrophic health outcomes as have been seen in other jurisdictions.24

We are deeply concerned that, at the time it was delivered and distributed to hospitals and medical associations at least, it was not made clear to the recipients that these recommendations and the Triage Protocol in which they are housed were a draft.25 The potential harm of this oversight cannot be overstated. Given the highly problematic and discriminatory nature of the first draft, the concern is that should hospitals hit surge prior to the approval or authorization of an improved version, then doctors will rely on the previous version, which may lead to devastating and disproportionate impacts on persons from marginalized communities.

Case in point: in or around May 2020 it was brought to ARCH’s attention that at least three different medical organizations had published the draft Triage Protocol on their websites as a resource for its members including doctors, nurses and other health professionals as if this was a finalized document.

Around the middle of May 2020, ARCH reached out to these three organizations, namely the Nurse Practitioners’ Association of Ontario (NPAO), CorHealth Ontario, and Canadian Association of Emergency Physicians (CAEP), and requested that they immediately remove the draft Triage Protocol from their websites in light of the Provincial Government’s statement that this was a draft and not a finalized document. Each organization complied.

It is beyond ARCH’s reach, however, to contact every single hospital and medical association to which the Triage Protocol was delivered on March 28, 2020 or soon thereafter. Frankly, it is also beyond ARCH’s responsibility to do same. Rather, it is incumbent upon Ontario Health to discharge this responsibility.

Accordingly, it is imperative that Ontario Health immediately contact every recipient of the original Triage Protocol to (a) ensure that the hospital/medical association is aware that the March 28, 2020 version is a draft that is not to be relied upon nor implemented, and (b) to ensure that no hospital staff or medical organization members are referring to or relying on that version of the Triage Protocol.

Clear and Plain Language Versions of the Triage Protocol

It is understood that the primary purpose of the Triage Protocol is to provide guidance to medical professionals and healthcare workers in the event that Ontario hits surge conditions. Simultaneously, however, it must be recognized that it is members of the public who will be subject to and impacted by decisions made pursuant to this Triage Protocol. Consequently, the public is entitled to know how doctors are expected to make these decisions and the basis upon which these decisions are made.

For clarification, clear language and plain language are two distinct concepts and are not to be used interchangeably. Clear language refers to the use of straightforward, direct language to convey ideas in a simple manner making the document accessible to everyone. Plain language is the use of techniques, like providing concrete examples and using clear language, to ensure that people with intellectual and/or developmental disabilities are able to access the information.

Accordingly, it is recommended that both clear language and plain language versions of the Triage Protocol be developed and made available to the public to disseminate this information in an accessible manner to as wide an audience as possible. It is imperative that any and all versions of the Triage Protocol be made accessible. This means that not only should the final version of the Triage Protocol also be produced in clear and plain language versions, but any drafts developed along the way as well.26

Wider Consultations Needed

Wider consultations on a document such as Triage Protocol 2, which will have wide and varying effects, including consequences that may be detrimental in nature, is imperative. These consultations, however, cannot be formalistic nor performative.

Consultations are imperative in order to ensure that the perspectives of persons who are being disproportionately impacted by COVID-19 and who are, in turn, disproportionately impacted by the Triage Protocol are considered and incorporated. This, of course, includes the perspective of persons with disabilities, Indigenous persons and persons from racialized communities including Black persons and persons from other racialized communities. Moreover, wider consultations ensure that a multi-dimensional lens, including one that emphasizes intersectionality, is applied when drafting any Triage Protocol.

It is important to note, however, that in order to have these consultations be truly accessible and receive feedback from relevant stakeholders, including persons with disabilities, a clear language and plain language versions of the Triage Protocol must be made available to said stakeholders (as stated above). The absence of an accessible version dilutes the purpose of these consultations, namely, to receive feedback from persons from disability communities.

Process-related Recommendations:
4. Ontario Health must communicate to every hospital and medical association/organization that the Triage Protocol dated March 28, 2020 is not be relied upon or implemented.
5. Clear language and plain language versions of all drafts and the final version of the Triage Protocol are to be produced and distributed widely so that all relevant stakeholders are able to understand the information and provide feedback.
6. Wider consultations are to be undertaken by the Bioethics Tables to ensure that the perspectives of persons with lived experience from marginalized and disproportionately impacted communities are heard and inform the drafting of the Triage Protocol.

Substantive Concerns regarding the Triage Protocol

The Continued Inclusion of the Clinical Frailty Scale

The Clinical Frailty Scale (CFS) must be entirely removed from Triage Protocol 2.27 While Triage Protocol 2 removes the visual chart of the CFS, it is still referred to in the exclusion criteria chart28, albeit more infrequently than in the previous draft, and is included in Appendix C as a Triage Criteria Tool.29

As already submitted in ARCH’s Brief dated May 13 2020, the CFS is included in the Triage Protocol to serve a purpose for which it was neither designed nor developed. The application of the CFS to persons with disabilities without the context of a pandemic is inappropriate. The application of the CFS to persons with disabilities within the context of a pandemic is catastrophic and devastating.

It is understood that the goal and intention of the CFS is to create a situation where all patients are treated fairly by applying the same metric across the board in a non-discriminatory manner,30 this belief, however, is not only misguided, but a deductive and logical fallacy. In applying the CFS as it is, to all patients, the able-bodied will always score lower (for example, a 1 on the CFS) and persons with disabilities will always score higher deeming them frail.31 In a pandemic setting this means that the able-bodied person will always be prioritized for care over persons with disabilities. This is not fairness nor is it treatment on an equitable basis.

Several jurisdictions have already recognized the error in initially including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committing to an individualized assessment of each patient. For example, in the United Kingdom,32 the use of the CFS was challenged and the government conceded the problematic nature of the CFS for the purposes of allocating critical care resources.33 Despite this, reliance on this problematic scale persists in Triage Protocol 2.

Recalling that intention is of no consequence it is irrelevant whether, with the application of the CFS, a doctor, healthcare worker, hospital, medical organization or government department intended to discriminate against a specific demographic of patients or not. Rather, of importance is the adverse impact experienced by a person with a disability by being subject to a seemingly neutral metric that will disproportionately place them at a disadvantage
The inclusion of the CFS in the Triage Protocol may not have been accompanied by an intention to discriminate, and yet the adverse impact experienced by persons with disabilities is real and tangible. In short, the adverse impact that flows from the inclusion and application of the Triage Protocol renders it discriminatory, regardless of the initial intention.

Survivability Beyond COVID-19

It is inappropriate to rely on ineligibility criteria that extends beyond the recovery of the acute COVID-related event.34 It is arbitrary and invites a higher risk of ableist value assumptions about the quality of a person’s life, which will inevitably cause a disproportionate adverse impact on persons with disabilities.35

Triage Protocol 2 states that a person would be ineligible for critical care where they have a low probability of surviving more than a few months beyond recovering from COVID. Triage Protocol 2 further explains that a person would be ineligible if they were very likely to die in the near future if they recovered from their critical illness.36

First, more than a few months is a speculative and subjective assessment, which could mean a number of different things to different doctors making these decisions. Second, this criteria goes beyond an assessment of the person’s chance of survival of the acute COVID-19-related event, and invites ableist presumptions about chances of survival or quality of life after Intensive Care Unit (ICU) treatment to seep into clinical evaluations.37 These types of assessments tend to disproportionately affect people with disabilities.38

As stated by Profs. Trudo Lemmens and Roxanne Mykitiuk:

While the protocol does not clarify the time frame used to determine the risk of mortality’ (i.e. mortality by when?), it goes beyond survival in the ICU, and includes the likelihood of survival months after ICU treatment. As mentioned above, the further one moves beyond ICU discharge, the more a policy will disproportionately impact on the elderly and people with disabilities.39

It is clear that survivability beyond the acute COVID-related incident is subjective, arbitrary, and risks discriminating against persons with disabilities. As such, it must not be relied on as a criteria of ineligibility.

Random Selection

Safeguards must be put into place to ensure that random selection is not polluted by unconscious biases and prejudices. In an effort to uphold the principle of fairness, Triage Protocol 2 suggests applying the method of random selection in situations where it is not possible to rely on medical utility to make clinical decisions.40 The aim, according to Triage Protocol 2, is to mitigate against the potential of explicit or unconscious bias in decision-making.41

The concern is how random selection will be carried out in practice as any decision-making is always subject to human and inherent bias. Triage Protocol 2 is vague as to how random selection will translate into practice, only noting that a record of the outcome of the process of randomization should be documented.42

In order to remedy against the influence of inherent bias, safeguards must be put in place to ensure a truly random selection process. It is also important to ensure that accountability and transparency are pillars in any random selection process implemented pursuant to the Triage Protocol. It is of utmost importance that the Triage Protocol be specific and thorough in how the random selection process is to be applied. As it stands at the moment, there is very little guidance and direction on this point which will lead to different practices of random selection across hospitals.43

Dispute Resolution Mechanisms

It is imperative that Triage Protocol 2 includes a dispute resolution mechanism. An appeals procedure is an essential procedural aspect of due process, which cannot be set aside in pandemic conditions.

In addressing the possibility of a dispute resolution process for patients/families who disagree with the outcome of a triage decision, Triage Protocol 2 suggests that a formal appeal process may not be feasible or appropriate.44 Instead, it offers to patients who have been subject to triage decisions that the hospital [c]ommunicat[e] the rationale to the patient/family and respond [?] compassionately to patient or family concerns.45 It also suggests that it will conduct a retrospective, global review by monitoring triage data, and reviewing and revising the approach to ensure it is not leading to adverse consequences.46 With respect, while these elements are important parts of a triage approach, this is not an acceptable substitute for individual due process.

To the contrary, it is possible and necessary to include an individual dispute resolution mechanism in Triage Protocol 2. A real-time review of individual complaints is vital for ensuring that no individual has been treated unjustly by the decision-makers and so that a new decision can be implemented before irreparable harm is done. This would allow the patient or family member to seek a remedy before a potentially discriminatory and irreversible decision is carried out.

Other jurisdictions recognize the importance of an appeal framework within a triage approach.47 The University of Virginia Health System Ethics Committee, for example, recommends that triage decisions be supported by an appeal process in order [t]o promote the ethical principles of trustworthiness, equity, fairness, and justice.48

It has been noted that while global review of the triage approach is important for accountability and on-going improvement of the triage process, it does not protect vulnerable patients, because it does not allow for timely intervention in individual triage decisions.49 As the Indiana State Department of Health noted in its Crisis Standards of Patient Care Guidance, while meticulous record keeping is desirable, in such cases, it is ethically important to prioritize energies spent in the direct saving of lives over those spent keeping records and in post?hoc analyses.50

Duty to Accommodate

It is imperative that Triage Protocol 2 includes a section that focuses on providing specific guidance and directions about the duty to accommodate. Triage Protocol 2 makes only brief references to the provision of accommodations for persons with disabilities accessing the Triage Protocol and decisions about critical care resources. These references are not specific nor directive.51

Disability-related accommodations for the purposes of accessing health care services are a basic tenet of human rights law.52 Disability-related accommodations ensure that persons with disabilities have equal opportunity to receive, understand, and benefit from critical care.

Other jurisdictions have acknowledged the importance of providing disability-related accommodations to persons to ensure they have equal access to health care during the COVID-19 pandemic. The British Medical Association’s guidance for COVID-19 reiterates that hospitals have a positive obligation to ensure that persons with disabilities are able to access and take advantage of public services in a manner as closely as reasonably possible to someone without disabilities.53 Similar directives can be found in other ICU decision-making guidance in jurisdictions like Tennessee.54

Accommodations may include interpretation, alternative and augmentative communication, support persons, or other supports that allow a person to gain equal access to medical services.55 These must be provided to the patient during the application of the Triage Protocol and the duration of the patient’s time at the hospital.

Triage Protocol 2 should include detailed directives regarding how accommodations are provided in the context of a pandemic. Disability-related needs vary depending on the person with a disability and may fluctuate throughout a period of time. Accordingly, and as discussed in the preceding paragraph, it is highly recommended that best practices be included such as asking each patient in the emergency room and/or upon admission to the hospital if they require disability-related accommodation and, if they do, what those accommodations are. These patient-specific accommodations should be recorded in the chart and applied by every healthcare worker that comes into contact with the patient. Practices such as these that are in line with human rights obligations will also assist in ensuring that all appropriate accommodations are in place when any assessments are made pursuant to the Triage Protocol.

Substantive Recommendations:

7. The Triage Protocol must not rely on the Clinical Frailty Scale in any capacity.
8. The Triage Protocol must eliminate eligibility criteria that considers survivability beyond the acute COVID related event.
9. Triage Protocol 2 should provide clear and specific guidance and direction as to how random selection should be carried out.
10. The Triage Protocol must include an individual dispute resolution process to ensure fairness, accountability, and due process.
11. The Triage Protocol must include a section dedicated to providing guidance and direction on the duty to accommodate.

Conclusion:

In sum, there continue to be concerns with Triage Protocol 2 that must be rectified to ensure that any response to a surge in COVID-19 cases does not adversely and disproportionately impact persons from marginalized communities including but not limited to persons from disability communities, elderly persons, Indigenous persons, Black persons and persons from other racialized communities.

The above submissions address a number of those concerns and provide Recommendations for reform. The Recommendations herein aim to align the Triage Protocol with human rights law and ensure that marginalized communities are not disproportionately impacted. The Recommendations impact the overall structure and guiding principles of the document, those related to the process within which the Triage Protocol has been developed, and those related to the substantive concerns, such as the use of the Clinical Frailty Scale or survivability beyond the acute event as metrics to assess patients, the use of random selection, the lack of a dispute resolution mechanism, and the importance of upholding the duty to accommodate.

Please do not hesitate to contact us should you wish to discuss any of these Recommendations in further and greater detail.

Sincerely,

ARCH DISABILITY LAW CENTRE

Robert Lattanzio
Executive Director

Mariam Shanouda
Staff Lawyer

Jessica De Marinis
Staff Lawyer

1 Critical Care Triage for Major Surge in the COVID-19 Pandemic: Updated Recommendations, delivered and dated July 7, 2020 [?Triage Protocol 2?].
2 ARCH would like to especially and sincerely thank members of its Advisory Committee for engaging in extensive discussion and providing thoughtful guidance and expertise on the important issues raised by the Triage Protocol. ARCH’s Advisory Committee, in alphabetical order, includes: Chris Beesley, Executive Director at Community Living Ontario, Laura LaChance, Interim Executive Director at Canadian Down Syndrome Society, Trudo Lemmens Professor, Scholl Chair in Health Law and Policy at University of Toronto Law School, David Lepofsky, Chair of the AODA Alliance, Leanne Mielczarek, Executive Director of Lupus Canada, Elizabeth Mohler, Board Member at Citizens With Disabilities Ontario, Roxanne Mykitiuk, Disability Law, Health Law, Bioethics and Family Law Professor at Osgoode Hall Law School, Tracy Odell, Executive Director of Citizens with Disabilities Ontario, Dr. Homira Osman, Director of Knowledge Translation & External Engagement at Muscular Dystrophy Canada, and Wendy Porch, Executive Director at the Centre for Independent Living Toronto.
3 ARCH submissions, dated May 13, 2020 [?ARCH May Submissions?] available online here: https://archdisabilitylaw.ca/wp-content/uploads/2020/05/ARCH-Lttr-re-Clinical-Triage-Protocol-May-13-2020-PDF.pdf 4 Critical Care Triage for Major Surge in the COVID-19 Pandemic dated March 28, 2020.
5 This point was succinctly made by Ms. Jennifer Gibson in her introduction providing background and context on the drafting of the Triage Protocol.
6 Law Commission of Ontario, The Law As It Affects Persons With Disabilities. Preliminary Consultation Paper: Approaches to Defining Disability [2009], online: Law Commission of Ontario www.lco-cdo.org 7 Ont Human Rights Comm v Simpson-Sears, [1985] 2 SCR 536 [?Simpson-Sears?]. 8 Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [?Eldridge?]. 9 Simpson-Sears, supra note 7.
10 Professor Kimberlé Crenshaw introduced the term intersectionality in 1989 to address the marginalization of Black women within not only antidiscrimination law but also in feminist and antiracist theory and politics. The term was elaborated upon by Professor Crenshaw in 1991 and has been adopted by human rights law.
11 Baylis-Flannery v. DeWilde (No. 2),(2003) 48 CHRR D/197 (Ont HRT) at para 144.
12 AODA Alliance, A Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis does not Discriminate Against Patients with Disabilities, April 14 2020, online: https://www.aodaalliance.org/whats-new/a-discussion-paper-on-ensuring-that-medical-triage-or-rationing-of-health-care-services-during-the-covid-19-crisis-does-not-discriminate-against-patients-with-disabilities/ [?AODA Alliance April Discussion Paper?]. See also, AODA Alliance, In a Second COVID-19 Wave, if there aren’t enough Ventilators for all Patients Needing them, a new Draft Ontario Protocol Would Continue to Discriminate Against COVID-19 Patients with Disabilities, July 16 2020, online: https://www.aodaalliance.org/whats-new/in-a-second-covid-19-wave-if-there-arent-enough-ventilators-for-all-patients-needing-them-a-new-draft-ontario-medical-triage-protocol-would-continue-to-discriminate-against-covid-19patients-with-d/ 13 Triage Protocol 2, supra note 1 at 2.
14 ?erife Tekin, Health Disparities in COVID-19 Triage Protocols, April 8, 2020, Impact Ethics, online: https://impactethics.ca/2020/04/08/health-disparities-in-covid-19-triage-protocols/ 15 Tekin, ibid. 16 Tekin, ibid.
17 See HHS Office for Civil Rights in Action, Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19), march 28, 2020, online: https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf . See also Peterson, Andrew, Emily A Largent, Emanuel Hart & Jason Karlawish, Ethics of reallocating ventilators in the covid-19 pandemic BMJ 2020;369:m1828, online: https://www.bmj.com/content/369/bmj.m1828
18 New York State Task Force on Life and the Law, New York State Department of Health, Ventilator Allocation Guidelines, November 2015 at 41, online: https://www.health.ny.gov/regulations/task_force/reports_publications/docs/ventilator_guidelines.pdf 19 Simpson-Sears, supra note 7 at paras 12-13. 20 Ibid.
21 Triage Protocol 2, supra note 1 at 2.
22 Ibid at 3.
23 An apt example of this, of course, is the inclusion of the Clinical Frailty Scale in the Triage Protocol 2. This is further explored below.
24 Correspondence from Ontario COVID-19 Bioethics Table to Roundtable Participants dated July 7, 2020 at 1.
25 This is the second time ARCH raises this concern. It was first raised in ARCH’s May 13, 2020 submissions where we stated: A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations. See ARCH May Submission, supra note 3.

26 At the July 15, 2020 Round-table discussion co-convened by the Bioethics Table and the Ontario Human Rights Commission, Ms. Jennifer Gibson clarified that she had been advised that there is currently a clear language version of the Triage Protocol being developed.
27 These submissions are made in addition to ARCH’s previous objections to the inclusion of the Clinical Frailty Scale. See ARCH May Submissions, supra note 3. 28 Triage Protocol 2, supra note 1 at 7.
29 Ibid at 20.
30 Lastly, the July Triage Protocol provides an explanatory note following the exclusion criteria chart noting the purpose for which the CFS is to be used. This qualifier does provide some clarification; however, in saying that, the Bioethics Table still has not demonstrated why the inclusion of the CFS is of necessity in the first place. Secondly, the explanatory note focuses on the intention of the CFS rather than the impact.
31 A salient point here, of course, is that frailty and disability are two distinct issues a distinction that the CFS and the Triage Protocol both fail to acknowledge.
32 Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/ 33 The Bioethics Table’s attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf
34 A helpful and concrete example of this can be found in the AODA Alliance April Discussion Paper, supra note 12. The example is as follows:
A patient with a history of cancer contracts serious COVID-19 symptoms and goes to hospital for emergency treatment. They need a ventilator. The hospital has too few ventilators to meet the needs of all its COVID-19 patients who need ventilators.
A physician is considering which patients will get a ventilator. The physician decides that the cancer patient’s long-term future lifespan may be shorter due to their cancer than other patients who have no disability. That physician thinks that this should be a factor weighing against that cancer patient getting the use of a ventilator.
Such decisions should not be based on the physician’s predictions, whether accurate or stereotype-based, about the eventual long-term lifespan of that patient unrelated to the COVID-19 diagnosis. The hospital or physician deciding who will get the ventilator must not weigh or hold against that patient with a disability the fact of their disability or its perceived impact on their long-term lifespan.
35 Trudo Lemmens, Quebec’s clinical triage protocol opens door to discrimination, June 15, 2020, online: https://policyoptions.irpp.org/magazines/june-2020/quebecs-clinical-triage-protocol-opens-door-to-discrimination/ 36 Triage Protocol 2, supra note 1 at 5.
37 Roxanne Mykitiuk & Trudo Lemmens, Assessing the value of a life: COVID-19 triage orders mustn’t work against those with disabilities, April 9, 2020, CBC online: https://www.cbc.ca/news/opinion/opinion-disabled-covid-19-triage-orders-1.5532137;
38 Trudo Lemmens & Roxanne Mykitiuk, Disability Rights Concerns and Clinical Triage Protocol Development During the COVID-19 Pandemic 2020 HLCJ 40:4 at 107. 39 Lemmens & Mykitiuk, ibid.
40 Triage Protocol 2, supra note 1 at 8.
41 Ibid.
42 Ibid.
43 It was noted at the July 15 Round-table by Ms. Jennifer Gibson that the aim of the Triage Protocol is to ensure that the same treatment and approach are taken across all hospitals. With respect, random selection as it is currently set out in Triage Protocol 2 fails to satisfy this objective as it is too vague and lacks direction to hospitals and healthcare workers. 44 Triage Protocol 2, supra note 1 at 12.
45 Triage Protocol 2, ibid.
46 Triage Protocol 2, ibid.
47 University of Virginia Health System Ethics Committee, Ethical Framework and Recommendations for COVID-19 Resources Allocation When Scarcity is Anticipated March 26, 2020 online: https://med.virginia.edu/biomedical-ethics/wp-content/uploads/sites/129/2020/03/Ethical-Framework-for-Co-vid-19-Resources-Allocation-3.26.20.pdf 48 Ibid at 7
49 Ibid at 233.
50 Indiana State Dep’t of Health, Crisis Standards of Care Community Advisory Group, Crisis Standards of Patient Care Guidance with an Emphasis on Pandemic Influenza: Triage and Ventilator Allocation Guidelines, 13 (2014) http://www.phe.gov/coi/Documents/Indiana%20Crisis%20Standards%20of%20Care%202014.pdf 51 Triage Protocol 2, supra note 1 at 3, 4 and 11. 52 Eldridge, supra note 8.
53 British Medical Association, COVID-19 ethical issues. A guidance note (2020) at 7, online (pdf): BMA https://www.bma.org.uk/media/2360/bma-covid-19-ethics-guidance-april-2020.pdf .
54 Tennessee, Tennessee Altered Standards of Care Workgroup, Guidance for the Ethical Allocation of Scarce Resources during a Community-Wide Public Health Emergency as Declared by the Governor of Tennessee (Version 1.6) (2020) online: Tennessee State Government
https://www.tn.gov/content/dam/tn/health/documents/cedep/ep/Guidance_for_the_Ethical_Allocation_of_Scarce_Resources.pdf . 55 See AODA Alliance April Discussion Paper, supra note 12:
More than one hospital patient needs a ventilator. There are not enough ventilators for all the patients who need one at that hospital. At least one of the patients who needs a ventilator has disabilities. Some of the patients who need a ventilator have no apparent disabilities.
One of the patients with disabilities who needs the ventilator will need disability-related accommodations in hospital in order to receive health care services, such as a deaf patient who needs Sign Language interpreters to effectively communicate with hospital staff. The emergency room doctor, deciding who will get the ventilator, is concerned that the patient with disabilities who needs such accommodations in the hospital setting will pose a greater demand on the hospital’s services and resources, if they survive, than would other patients who need the ventilator.
The hospital or physician who is deciding who will get to use the ventilator must never use a patient’s need for disability-related accommodations as a factor or reason for refusing them the ventilator.




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New Report Reveals that At Majority of Ontarios School Boards, Each School Principal Is a Law Unto Themselves, With Arbitrary Power to Exclude a Student From School ? Real Risk of a Rash of Exclusion of Some Students with Disabilities When Schools Re-Open


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

July 23, 2020 Toronto: Parents of a third of a million Ontario K-12 students with disabilities have much to fear when schools re-open. A ground-breaking report by the non-partisan AODA Alliance (unveiled today, summary below) shows that for much of Ontario, each school principal is a law unto themselves, armed with a sweeping, arbitrary power to refuse to allow a student to come to school. If schools re-open this fall, there is a real risk of a rash of principals excluding some students with disabilities from school, because well-intentioned, overburdened principals wont know how to accommodate them during COVID-19.

The Education Act gives each school principal the drastic power to refuse to admit to school any person whose presence in the school or classroom would in the principals judgment be detrimental to the physical or mental well-being of the pupils”. A survey of Ontarios 72 school boards, unveiled today, shows that a majority of school boards have no policy reining in their principals sweeping power. Ontarios Ministry of Education gives principals precious little direction. Principals need not keep track of how many students they exclude, or for how long, or for what reason, nor need they report this information to anyone. School Boards are left largely free to do as little as they wish to monitor for and prevent abuse of this power.

This is especially worrisome for students with disabilities. Disproportionately, its students with disabilities who are at risk of being excluded from school.

Todays report details how the most vulnerable students can unjustifiably be treated very differently from one part of Ontario to the next. Of Ontarios 72 School Boards, only 33 Boards have been found to have any policy on this. Only 36 School Boards even responded to the AODA Alliance survey. Only 11 Boards gave the AODA Alliance a policy. A web search revealed that another 22 Boards have a policy on this.

As for the minority of 33 boards that have any policy on point, this report documented wild and arbitrary differences from Board to Board. Some Board policies have commendable and helpful ingredients that all boards should have. Some Board policies contain unfair and inappropriate ingredients that should be forbidden. For example, no Board should impose on a student or their family an arbitrary time limit for presenting an appeal from their exclusion to school.

Every student facing the trauma of an exclusion from school deserves full and equally fair procedures and safeguards, said AODA Alliance Chair David Lepofsky. The current arbitrary pattern of patchwork injustice cries out for new leadership now by the Ford Government.

COVID-19 escalates this issues urgency. The Ministry of Education should head off a rash of new exclusions from school this fall before it happens, by immediately directing School Boards to implement common sense restrictions on a principal, outlined in the report, on when and how a principal may exclude a student from school.

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

Download the entire AODA Alliance report on Refusals to Admit A Student to School by visiting https://www.aodaalliance.org/wp-content/uploads/2020/07/july-23-2020-AODA-Alliance-finalized-refusals-to-admit-brief.docx

The AODA Alliances COVID-19 web page details its efforts to ensure that the urgent needs of people with disabilities are met during the COVID-19 crisis.
The AODA Alliance’s Education web page details its ongoing efforts over the past decade to tear down the many barriers impeding students with disabilities in Ontarios education system.

Introduction and Summary of the AODA Alliances Report on the Power of Ontario School Principals to Refuse to Admit a Student to School

I. Introduction and Summary
(a) Whats the Problem?
For years, Ontarios Education Act has given every Ontario school principal the drastic power to refuse to admit to school any person whose presence in the school or classroom would in the principals judgment be detrimental to the physical or mental well-being of the pupils”. A student can be excluded from school for part or all of the school day. This report uses the terms refusal to admit and exclusion from school or simply exclusion to mean the same thing.

When a principal refuses to admit a student to school, that violates that students right to go to school to get an education. Under the Education Act as interpreted or applied by the Ontario Government and school boards, a student can be excluded from school for days, weeks or even months.

Ontarios Ministry of Education has given School Boards and principals very little direction on how this sweeping power may be used. School Boards are therefore left largely free to do as much or as little as they wish to ensure that this power is not abused by an individual school principal.

A School Board can develop a policy on how a principal can use the power to refuse to admit a student to school; however, a School Board does not have to do so. If it does adopt a policy, it does not have to be a good policy. (b) Taking Stock The AODA Alliance Surveys Ontario School Boards
The AODA Alliance therefore conducted a survey of Ontarios major School Boards to find out what their policies and practices are regarding the exclusion of students from school. The non-partisan grassroots AODA Alliance advocates for accessibility for people with disabilities, including for students with disabilities. See its websites Education page.

This report makes public the results of the AODA Alliance’s survey and investigation. It reveals an arbitrary patchwork of different policies around Ontario, unjustifiably treating the most vulnerable students differently from one part of Ontario to the next. There is a pressing need for the Ontario Government to step into the gap, to protect students, and especially students with disabilities.
In an error which the AODA Alliance regrets, the survey was inadvertently not earlier sent to one board, the Dufferin Peel Catholic District School Board, before this report was written. It has just done so, and will make public an addendum to this report if a response is received that alters the results expressed in this report. This error does not diminish this reports findings or recommendations.

School Boards were asked (i) if it has a policy on when-and-how its school principals can refuse to admit a student to school, (ii) whether the Board tracks its principals use of this power, and (iii) how many students have been excluded from school. The AODA Alliance sent its survey to School Boards twice, once in 2019, and once in 2020. The Council of Directors of Education retained private legal counsel to get legal advice before responding to this survey.
(c) The Survey Revealed an Arbitrary Patchwork of Wildly Varying Local Requirements
Of Ontarios 72 School Boards, only 33 Boards have been found to have a written policy or procedure on refusals to admit a student to school. Only 36 School Boards responded to the AODA Alliances survey. Of those, only 11 Boards gave the AODA Alliance their policy or procedure on refusals to admit.

Six School Boards told the AODA Alliance that they have no policy on refusals to admit. An extensive web search by the AODA Alliance revealed that another 22 School Boards have a written policy or procedure on this topic. In a number of cases, these were not easy to find. Taken together, a large number of Ontario School Boards revealed a troubling lack of openness and accountability on this subject.

This reports analysis of the 33 policies or procedures on refusals to admit, as obtained by the AODA Alliance, revealed that there are wild variations between the written policies of School Boards across Ontario on excluding a student from school. Some are very short and say very little. Others are far more extensive and detailed.

As for safeguards for vulnerable students and their parents in the face of an exclusion from school, there are arbitrary and unjustified differences from Board to Board. Some Board policies have commendable and helpful ingredients that should be required of all School Boards. Some Board policies contain unfair and inappropriate ingredients that should be forbidden. For example, no Board should use a refusal to admit to facilitate a police investigation, or set an arbitrary time limit in advance for an appeal hearing from a refusal to admit, or give a student or their family an arbitrary time limit for presenting such an appeal.

There is no justification for such wild variations from Board to Board, from no policy, to policies that say very little, to substantially better policies. Every student facing an exclusion from school deserves fair procedures and effective safeguards. Every School Board should meet basic requirements of transparency and accountability in their use of this drastic power. No compelling policy objective is served by leaving each School Board to reinvent the wheel here. (d) The Urgently Needed Solution: Action Now by the Ontario Government
This situation cries out for leadership on this issue by Ontarios Ministry of Education. The failure of so many School Boards to even have a policy in this area, the unwillingness of so many School Boards to even answer questions about their policy on this issue, and the fact that policies are so hard to find on line combine to create a disturbing picture. For too much of Ontario, well-intentioned school principals are left to be a law unto themselves. The AODA Alliance expects that these hard-working and dedicated principals neither asked for this nor would like this situation to remain as is.

This issue has serious implications for students with disabilities. Refusals to admit a student to school disproportionately burden some students with disabilities.

The COVID-19 crisis escalates the urgency of this issue. When schools re-open this fall, there is a real risk that there could be a rash of more refusals to admit some students with disabilities to school. This threatens to be the way some overwhelmed and overburdened principals will cope with the stressful uncertainties surrounding the COVID-19 pandemic.

The Ministry of Education should head off this problem before it happens, by immediately directing School Boards to implement some basic and overdue requirements for refusals to admit a student to school. The Ministry should then develop a comprehensive and broader set of mandatory requirements for all School Boards when exercising the power to refuse to admit a student to school.

Examples of helpful requirements that the Ministry of Education should require, and that this report documents as now in place in one or more School Boards include the following:
1. Refusals to admit should be recognized as an infringement of the students right to go to school to get an education, and as raising potential human rights issues, especially for students with disabilities. The Ontario Human Rights Code has primacy over the Education Act and the power to refuse to admit a student to school.
2. A refusal to admit should only be imposed for a proper safety purpose. A student cannot be refused admission to school for purposes of discipline.
3. Maximum time limits should be set for a refusal to admit, with a process for considering how to extend it if necessary and justified.
4. A refusal to admit a student to school should only be permitted in very rare, extreme cases, as a last resort, after considering or trying all less intrusive alternatives. A principal should be required to take a step-by-step tiered approach to deciding whether to refuse to admit a student to school, first exhausting all less restrictive alternatives, and first ensuring that the students disability-related needs have been accommodated as required under the Ontario Human Rights Code.
5. It should not be left to an individual principal to unilaterally decide on their own to refuse to admit a student to school. Prior approval of a higher authority with the School Board should be required, supported by sufficient documentation of the deliberations.
6. A principal should be required to work with a student and their family on issues well before it degenerates to the point of considering a refusal to admit. The School Board should be required to have a mandatory meeting with the family before a refusal to admit is imposed.
7. A principal should be required to immediately send a letter to the parents of a student whom they are refusing to admit to school, setting out the facts and specifics that are the reasons for the exclusion from school. A senior Board supervisor that approved the decision should be required to co-sign the letter. The letter should also be signed by the Director of Education if the student is to be excluded from all schools in the Board.
8. A School Board that excludes a student from school should be required to put in place a plan for delivering an effective educational program to that student while excluded from school, including the option of face-to-face engagement with a teacher off of school property. This plan should be monitored to ensure it is sufficient.
9. If a student is excluded from school, the School Board should be under a strong duty to work with the student and family to get them back to school as soon as possible.
10. A School Board that excludes a student from school should be required to hold a re-entry meeting with the student and family to transition to the return to school.
11. Any appeals to the Board of Trustees for the School Board from a refusal to admit should assure fair procedures to the student and their family. An excluded student should at least have all the safeguards in the appeal process as does a student who is subjected to discipline.
12. The appeal should be heard by the entire Board of Trustees, and not just a sub-committee of some trustees. An appeal hearing should be held and decided quickly, since the student is languishing at home.
13. A Board of Trustees, hearing an appeal from a refusal to admit, should consider whether the School Board has justified the students initial exclusion from school and its continuation. The burden should be on the School Board to justify the exclusion from school, and not on the student trying to go back to school. At an appeal hearing, the principal should first present why the exclusion from school is justified and should continue, before the student or parents are asked to show why the student should be allowed to return to school.
14. When an appeal is launched, the School Board should be required to first try to resolve the issue short of a full appeal hearing.
15. A students record of a refusal to admit to school should not stain the students official school record.
16. If a School Board directs that a student can only come to school for part of the school day), the same safeguards for the student should be required as for a student who is excluded for the entire day. 17. Any policy in this area should be periodically reviewed and updated.




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New Report Reveals that At Majority of Ontario’s School Boards, Each School Principal Is a Law Unto Themselves, With Arbitrary Power to Exclude a Student From School – Real Risk of a Rash of Exclusion of Some Students with Disabilities When Schools Re-Open


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

New Report Reveals that At Majority of Ontario’s School Boards, Each School Principal Is a Law Unto Themselves, With Arbitrary Power to Exclude a Student From School – Real Risk of a Rash of Exclusion of Some Students with Disabilities When Schools Re-Open

July 23, 2020 Toronto: Parents of a third of a million Ontario K-12 students with disabilities have much to fear when schools re-open. A ground-breaking report by the non-partisan AODA Alliance (unveiled today, summary below) shows that for much of Ontario, each school principal is a law unto themselves, armed with a sweeping, arbitrary power to refuse to allow a student to come to school. If schools re-open this fall, there is a real risk of a rash of principals excluding some students with disabilities from school, because well-intentioned, overburdened principals won’t know how to accommodate them during COVID-19.

The Education Act gives each school principal the drastic power to refuse to admit to school any “person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils…”. A survey of Ontario’s 72 school boards, unveiled today, shows that a majority of school boards have no policy reining in their principals’ sweeping power. Ontario’s Ministry of Education gives principals precious little direction. Principals need not keep track of how many students they exclude, or for how long, or for what reason, nor need they report this information to anyone. School Boards are left largely free to do as little as they wish to monitor for and prevent abuse of this power.

This is especially worrisome for students with disabilities. Disproportionately, it’s students with disabilities who are at risk of being excluded from school.

Today’s report details how the most vulnerable students can unjustifiably be treated very differently from one part of Ontario to the next. Of Ontario’s 72 School Boards, only 33 Boards have been found to have any policy on this. Only 36 School Boards even responded to the AODA Alliance survey. Only 11 Boards gave the AODA Alliance a policy. A web search revealed that another 22 Boards have a policy on this.

As for the minority of 33 boards that have any policy on point, this report documented wild and arbitrary differences from Board to Board. Some Board policies have commendable and helpful ingredients that all boards should have. Some Board policies contain unfair and inappropriate ingredients that should be forbidden. For example, no Board should impose on a student or their family an arbitrary time limit for presenting an appeal from their exclusion to school.

“Every student facing the trauma of an exclusion from school deserves full and equally fair procedures and safeguards,” said AODA Alliance Chair David Lepofsky. “The current arbitrary pattern of patchwork injustice cries out for new leadership now by the Ford Government.”

COVID-19 escalates this issue’s urgency. The Ministry of Education should head off a rash of new exclusions from school this fall before it happens, by immediately directing School Boards to implement common sense restrictions on a principal, outlined in the report, on when and how a principal may exclude a student from school.

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

Download the entire AODA Alliance report on Refusals to Admit A Student to School by visiting https://www.aodaalliance.org/wp-content/uploads/2020/07/july-23-2020-AODA-Alliance-finalized-refusals-to-admit-brief.docx

The AODA Alliance’s COVID-19 web page details its efforts to ensure that the urgent needs of people with disabilities are met during the COVID-19 crisis.

The AODA Alliance‘s Education web page details its ongoing efforts over the past decade to tear down the many barriers impeding students with disabilities in Ontario’s education system.

Introduction and Summary of the AODA Alliance’s Report on the Power of Ontario School Principals to Refuse to Admit a Student to School

I. Introduction and Summary

(a) What’s the Problem?

For years, Ontario’s Education Act has given every Ontario school principal the drastic power to refuse to admit to school any “person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils…”. A student can be excluded from school for part or all of the school day. This report uses the terms “refusal to admit” and “exclusion from school” or simply “exclusion” to mean the same thing.

When a principal refuses to admit a student to school, that violates that student’s right to go to school to get an education. Under the Education Act as interpreted or applied by the Ontario Government and school boards, a student can be excluded from school for days, weeks or even months.

Ontario’s Ministry of Education has given School Boards and principals very little direction on how this sweeping power may be used. School Boards are therefore left largely free to do as much or as little as they wish to ensure that this power is not abused by an individual school principal.

A School Board can develop a policy on how a principal can use the power to refuse to admit a student to school; however, a School Board does not have to do so. If it does adopt a policy, it does not have to be a good policy.

(b) Taking Stock – The AODA Alliance Surveys Ontario School Boards

The AODA Alliance therefore conducted a survey of Ontario’s major School Boards to find out what their policies and practices are regarding the exclusion of students from school. The non-partisan grassroots AODA Alliance advocates for accessibility for people with disabilities, including for students with disabilities. See its website’s Education page.

This report makes public the results of the AODA Alliance‘s survey and investigation. It reveals an arbitrary patchwork of different policies around Ontario, unjustifiably treating the most vulnerable students differently from one part of Ontario to the next. There is a pressing need for the Ontario Government to step into the gap, to protect students, and especially students with disabilities.

In an error which the AODA Alliance regrets, the survey was inadvertently not earlier sent to one board, the Dufferin Peel Catholic District School Board, before this report was written. It has just done so, and will make public an addendum to this report if a response is received that alters the results expressed in this report. This error does not diminish this report’s findings or recommendations.

School Boards were asked (i) if it has a policy on when-and-how its school principals can refuse to admit a student to school, (ii) whether the Board tracks its principal’s use of this power, and (iii) how many students have been excluded from school. The AODA Alliance sent its survey to School Boards twice, once in 2019, and once in 2020. The Council of Directors of Education retained private legal counsel to get legal advice before responding to this survey.

(c) The Survey Revealed an Arbitrary Patchwork of Wildly Varying Local Requirements

Of Ontario’s 72 School Boards, only 33 Boards have been found to have a written policy or procedure on refusals to admit a student to school. Only 36 School Boards responded to the AODA Alliance’s survey. Of those, only 11 Boards gave the AODA Alliance their policy or procedure on refusals to admit.

Six School Boards told the AODA Alliance that they have no policy on refusals to admit. An extensive web search by the AODA Alliance revealed that another 22 School Boards have a written policy or procedure on this topic. In a number of cases, these were not easy to find. Taken together, a large number of Ontario School Boards revealed a troubling lack of openness and accountability on this subject.

This report’s analysis of the 33 policies or procedures on refusals to admit, as obtained by the AODA Alliance, revealed that there are wild variations between the written policies of School Boards across Ontario on excluding a student from school. Some are very short and say very little. Others are far more extensive and detailed.

As for safeguards for vulnerable students and their parents in the face of an exclusion from school, there are arbitrary and unjustified differences from Board to Board. Some Board policies have commendable and helpful ingredients that should be required of all School Boards. Some Board policies contain unfair and inappropriate ingredients that should be forbidden. For example, no Board should use a refusal to admit to facilitate a police investigation, or set an arbitrary time limit in advance for an appeal hearing from a refusal to admit, or give a student or their family an arbitrary time limit for presenting such an appeal.

There is no justification for such wild variations from Board to Board, from no policy, to policies that say very little, to substantially better policies. Every student facing an exclusion from school deserves fair procedures and effective safeguards. Every School Board should meet basic requirements of transparency and accountability in their use of this drastic power. No compelling policy objective is served by leaving each School Board to reinvent the wheel here.

(d) The Urgently Needed Solution: Action Now by the Ontario Government

This situation cries out for leadership on this issue by Ontario’s Ministry of Education. The failure of so many School Boards to even have a policy in this area, the unwillingness of so many School Boards to even answer questions about their policy on this issue, and the fact that policies are so hard to find on line combine to create a disturbing picture. For too much of Ontario, well-intentioned school principals are left to be a law unto themselves. The AODA Alliance expects that these hard-working and dedicated principals neither asked for this nor would like this situation to remain as is.

This issue has serious implications for students with disabilities. Refusals to admit a student to school disproportionately burden some students with disabilities.

The COVID-19 crisis escalates the urgency of this issue. When schools re-open this fall, there is a real risk that there could be a rash of more refusals to admit some students with disabilities to school. This threatens to be the way some overwhelmed and overburdened principals will cope with the stressful uncertainties surrounding the COVID-19 pandemic.

The Ministry of Education should head off this problem before it happens, by immediately directing School Boards to implement some basic and overdue requirements for refusals to admit a student to school. The Ministry should then develop a comprehensive and broader set of mandatory requirements for all School Boards when exercising the power to refuse to admit a student to school.

Examples of helpful requirements that the Ministry of Education should require, and that this report documents as now in place in one or more School Boards include the following:

  1. Refusals to admit should be recognized as an infringement of the student’s right to go to school to get an education, and as raising potential human rights issues, especially for students with disabilities. The Ontario Human Rights Code has primacy over the Education Act and the power to refuse to admit a student to school.
  2. A refusal to admit should only be imposed for a proper safety purpose. A student cannot be refused admission to school for purposes of discipline.
  3. Maximum time limits should be set for a refusal to admit, with a process for considering how to extend it if necessary and justified.
  4. A refusal to admit a student to school should only be permitted in very rare, extreme cases, as a last resort, after considering or trying all less intrusive alternatives. A principal should be required to take a step-by-step tiered approach to deciding whether to refuse to admit a student to school, first exhausting all less restrictive alternatives, and first ensuring that the student’s disability-related needs have been accommodated as required under the Ontario Human Rights Code.
  5. It should not be left to an individual principal to unilaterally decide on their own to refuse to admit a student to school. Prior approval of a higher authority with the School Board should be required, supported by sufficient documentation of the deliberations.
  6. A principal should be required to work with a student and their family on issues well before it degenerates to the point of considering a refusal to admit. The School Board should be required to have a mandatory meeting with the family before a refusal to admit is imposed.
  7. A principal should be required to immediately send a letter to the parents of a student whom they are refusing to admit to school, setting out the facts and specifics that are the reasons for the exclusion from school. A senior Board supervisor that approved the decision should be required to co-sign the letter. The letter should also be signed by the Director of Education if the student is to be excluded from all schools in the Board.
  8. A School Board that excludes a student from school should be required to put in place a plan for delivering an effective educational program to that student while excluded from school, including the option of face-to-face engagement with a teacher off of school property. This plan should be monitored to ensure it is sufficient.
  9. If a student is excluded from school, the School Board should be under a strong duty to work with the student and family to get them back to school as soon as possible.
  10. A School Board that excludes a student from school should be required to hold a re-entry meeting with the student and family to transition to the return to school.
  11. Any appeals to the Board of Trustees for the School Board from a refusal to admit should assure fair procedures to the student and their family. An excluded student should at least have all the safeguards in the appeal process as does a student who is subjected to discipline.
  12. The appeal should be heard by the entire Board of Trustees, and not just a sub-committee of some trustees. An appeal hearing should be held and decided quickly, since the student is languishing at home.
  13. A Board of Trustees, hearing an appeal from a refusal to admit, should consider whether the School Board has justified the student’s initial exclusion from school and its continuation. The burden should be on the School Board to justify the exclusion from school, and not on the student trying to go back to school. At an appeal hearing, the principal should first present why the exclusion from school is justified and should continue, before the student or parents are asked to show why the student should be allowed to return to school.
  14. When an appeal is launched, the School Board should be required to first try to resolve the issue short of a full appeal hearing.
  15. A student’s record of a refusal to admit to school should not stain the student’s official school record.
  16. If a School Board directs that a student can only come to school for part of the school day), the same safeguards for the student should be required as for a student who is excluded for the entire day.
  17. Any policy in this area should be periodically reviewed and updated.



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The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol


Hasnt The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

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/

May 14, 2020

SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Governments widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCHs website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCHs executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Governments lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVOs The Agenda with Steve Paikin.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letters excellent points:

1. ARCHs May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Governments secret March 28, 2020 medical triage protocol:

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations Convention on the Rights of Persons with Disabilities.

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

2. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontarios Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

3. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVOs The Agenda with Steve Paikin. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.

4. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.

5. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.

6. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.

7. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Governments political strategy in this area had been to wait for the curve to flatten, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Governments initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofskys and Wendy Porchs May 8, 2020 interview on The Agenda with Steve Paikin and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliances COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got 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 worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premiers office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected] Please stay safe!

MORE DETAILS

The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre
Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health College Park, 5th Floor
777 Bay Street
Toronto, ON M7A 2J3

Mr. Matthew Anderson
Chief Executive Officer
Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re: Ontarios Clinical Triage Protocol for Major Surge in COVID Pandemic

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic1 (the Triage Protocol), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Governments letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Governments direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups aside from the OHRC that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Governments assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, The scarcity of resources should never be a justification to discriminate against certain groups of patients2. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.3

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,4 the Charter of Rights and Freedoms (the Charter),5 and the United Nations Convention on the Rights of Persons with Disabilities.6 For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.7 The Triage Protocol, and the tools it relies on to determine a patients prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).8 The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels9 and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and advanced or moderate neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The animating norm of section 15 is substantive equality,10 which responds to the reality that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.11

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.12 Historically, and due to this, persons with disabilities have been denied equal access to health care13 on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.14 The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.15 This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable16 to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.17 However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.18 The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them severely frail on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the persons health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities19 into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patients life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.20

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.
It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a persons disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,21 those who use support persons for daily living tasks and personal care,22 those who walk with assistance,23 or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as frail which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patients likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,24 and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.25 It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.26 Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Governments attention, for example, to the United Kingdom,27 where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.28 The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of frailty according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival29 also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.30 The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.31 The preamble explains that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.32

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties shall closely consult with and actively involve them through representative organizations.33 This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

(a) Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
(b) Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
(c) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
(d) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
(e) Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
(f) Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,
ARCH DISABILITY LAW CENTRE

Robert Lattanzio
Executive Director

Cc: Raymond Cho, Minister of Accessibility
Todd Smith, Minister of Children, Community and Social Services Renu Mandhane, Ontario Human Rights Commissioner

1 Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].
2 No exceptions with COVID-19: Everyone has the right to life-saving interventions UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities
3 Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD]. 4 RSO 1990, c H.19 [Code]
5 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 6 CRPD, supra note 3.
7 Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge]. 8 Triage Protocol, supra note 1 at 6.
9 Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

10 See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143. 11 Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.
12 Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/. 13 Eldridge, supra note 7.
14 Eldridge, ibid at para 56.
15 United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with
Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [?Report of the Special Rapporteur?]. 16 Savin & Guidry-Grimes, supra note 12.
17 Triage Protocol, supra note 1 at 3.
18 Report of the Special Rapporteur, supra note 15, at 6.
19 The Triage Protocol uses cognitive impairments, which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term cognitive disabilities is used throughout.
20 See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

21 Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10. 22 Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid. 23 Scoring a 6 on the CFS, see Triage Protocol, ibid.
24 CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859
25 Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html
26 National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale
27 Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/
28 The Governments attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

29 See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3. 30 Hughes v Elections Canada, 2010 CHRT 4 at para 79.
31 United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7]. 32 CRPD, supra note 3, Preamble.
33 CRPD, ibid, Art 4(3).




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The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

May 14, 2020

          SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Government’s widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCH’s website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCH’s executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Government’s lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVO’s “The Agenda with Steve Paikin”.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letter’s excellent points:

  1. ARCH’s May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Government’s secret March 28, 2020 medical triage protocol:

“In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations’ Convention on the Rights of Persons with Disabilities.”

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

  1. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontario’s Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

  1. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVO’s “The Agenda with Steve Paikin”. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.
  1. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.
  1. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.
  1. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.
  1. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Government’s political strategy in this area had been to wait for the “curve to flatten”, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Government’s initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofsky’s and Wendy Porch’s May 8, 2020 interview on “The Agenda with Steve Paikin” and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliance’s COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got 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 worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premier’s office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected]. Please stay safe!

          MORE DETAILS

 The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre

Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health

College Park, 5th Floor

777 Bay Street

Toronto, ON M7A 2J3

Mr. Matthew Anderson

Chief Executive Officer

Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re:       Ontario’s Clinical Triage Protocol for Major Surge in COVID Pandemic

 

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic[1] (the “Triage Protocol”), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Government’s letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Government’s direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups – aside from the OHRC – that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Government’s assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, “The scarcity of resources … should never be a justification to discriminate against certain groups of patients[2]. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.[3]

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,[4] the Charter of Rights and Freedoms (the Charter),[5] and the United Nations’ Convention on the Rights of Persons with Disabilities.[6] For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.[7] The Triage Protocol, and the tools it relies on to determine a patient’s prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).[8] The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels[9] and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and “advanced or moderate” neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

 

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The “animating norm” of section 15 is substantive equality,[10] which responds to the reality that “persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.”[11]

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score – it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.[12] Historically, and due to this, persons with disabilities have been denied equal access to health care[13] on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.[14] The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.[15] This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners’ decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable[16] to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.[17] However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates “to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.”[18] The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them “severely frail” on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the person’s health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities[19] into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patient’s life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.[20]

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.

It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a person’s disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

 

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,[21] those who use support persons for daily living tasks and personal care,[22] those who walk with assistance,[23] or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as “frail” which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patient’s likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities’ right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,[24] and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.[25] It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.[26] Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Government’s attention, for example, to the United Kingdom,[27] where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.[28] The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities’ right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of “frailty” according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival[29] also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.[30] The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.[31] The preamble explains that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”.[32]

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties “shall closely consult with and actively involve” them through “representative organizations”.[33] This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

  • Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
  • Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
  • Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
  • Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,

ARCH DISABILITY LAW CENTRE

 

 

Robert Lattanzio

Executive Director

 

Cc:       Raymond Cho, Minister of Accessibility

Todd Smith, Minister of Children, Community and Social Services

Renu Mandhane, Ontario Human Rights Commissioner

[1] Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].

[2] No exceptions with COVID-19: “Everyone has the right to life-saving interventions” – UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities

[3] Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD].

[4] RSO 1990, c H.19 [Code]

[5] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[6] CRPD, supra note 3.

[7] Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge].

[8] Triage Protocol, supra note 1 at 6.

[9] Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

[10] See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143.

[11] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.

[12] Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/.

[13] Eldridge, supra note 7.

[14] Eldridge, ibid at para 56.

[15] United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with

Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [“Report of the Special Rapporteur”].

[16] Savin & Guidry-Grimes, supra note 12.

[17] Triage Protocol, supra note 1 at 3.

[18] Report of the Special Rapporteur, supra note 15, at 6.

[19] The Triage Protocol uses “cognitive impairments,” which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term “cognitive disabilities” is used throughout.

[20] See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

[21] Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10.

[22] Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid.

[23] Scoring a 6 on the CFS, see Triage Protocol, ibid.

[24] CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859

[25] Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html

[26] National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale

[27] Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/

[28] The Government’s attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

[29] See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3.

[30] Hughes v Elections Canada, 2010 CHRT 4 at para 79.

[31] United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7].

[32] CRPD, supra note 3, Preamble.

[33] CRPD, ibid, Art 4(3).



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Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities


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

January 28, 2020 Toronto: After a year delay, the Ford Government today offered thin gruel to 2.6 million Ontarians with disabilities in its response set out below to the searing report of the Government-appointed Independent Review of the implementation of Ontarios disability accessibility law conducted by David Onley. On January 31, 2019, the Government received Onleys blistering report that concluded that for people with disabilities, Ontario is not a place of opportunity, but is instead full of countless, dispiriting, soul-crushing Barriers, with progress on accessibility being barely detectable and coming at a glacial pace.

To fix this, today the Ford Government mainly re-announced existing measures, in place for months or years, primarily focusing on public education efforts that are proven to be insufficient. Among these, it even re-announced a program for purchasing accessible buses that was started a quarter century ago by the Bob Rae Government.

After a year, this is the best they can do? Premier Ford has still announced no action plan to implement the Onley Reports important recommendations to strengthen and speed up the implementation and enforcement of the 2005 Accessibility for Ontarians with Disabilities Act. The AODA requires the Government to lead Ontario to become accessible by 2025, under five years from now, said David Lepofsky, chair of the non-partisan grassroots AODA Alliance that leads the campaign for accessibility in Ontario. How long must we wait for a real plan to actually implement the Onley Report? A years dithering mainly produced a re-announcement of earlier voluntary programs that the Onley Report shows were insufficient to meet the needs of Ontarians with disabilities who want to ride public transit, get an education, use our health care system or get a job.

The Onley Report found that Ontario has suffered from years of ineffective leadership on accessibility. Todays announcement shows none of the new leadership by the premier for which the Onley Report called. Indeed, Premier Ford has to date refused to even meet with the AODA Alliance.

Since taking office, the Ford Government has taken steps setting back accessibility, such as:

* For months, it froze the work of five advisory committees, appointed under the AODA to propose new measures to achieve accessibility for Ontarians with disabilities in education, health care, information and communication and employment. The AODA Alliance had to campaign hard to get that unjustified freeze lifted.

* It rejected recommendations to create a long-overdue Accessibility Standard to ensure that buildings in Ontario become accessible. The Ford Government unfairly slammed that proposal as “red tape.” Todays re-announcement that the Ford Government plans to harmonize the weak Ontario Building Code with the weak federal building code could lead to a further weakening of already-inadequate accessibility protections for Ontarians with disabilities.

* Again re-announced today, it wastefully diverted $1.3 million public dollars into the deeply-flawed and unaccountable Rick Hansen Foundation’s private accessibility certification program funds which should have been used to create new regulations on building accessibility, rather than having the Hansen Foundation use inadequate standards to have its insufficiently-trained people inspect a meager 250 buildings across all of Ontario.

* It mandated the creation of serious new barriers against people with disabilities by legalizing electric scooters on Ontario roads and sidewalks, endangering accessibility and safety of people with disabilities and others. Todays announcement says the Ford Government will lead by example on accessibility, but its example so far is one that no one should follow.

* It is considering allowing builders to hire the private building inspector of their choice to inspect their construction project a proposal riddled with conflicts of interest. Here again the Government is showing a weak commitment to accessibility in the built environment, despite the Onley Reports emphasizing it as a top priority and the Governments announcement today emphasizing barriers in the built environment.

* It has not committed to ensure that public money is never used to create barriers against Ontarians with disabilities. This is so even though the Government has emphasized its commitment to be responsible in the use of public money.

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

Text of the Ford Governments January 28, 2020 Announcement In Response to the Onley Report

Ontario Establishes a New Framework to Continue Progress on Accessibility Applying Cross-Government Actions to Advance Accessibility

NEWS
January 28, 2020
TORONTO When a society is inclusive and barrier-free, people can fully participate in their communities. Making Ontario a province where communities and businesses are accessible for everyone benefits us all.

The government continues to build momentum in creating a barrier-free Ontario, but a lot of work still needs to be done to make the province accessible for everyone. That is why Ontario has developed a new framework informed by the recommendations made by the Honourable David C. Onley in the third legislative review of the Accessibility for Ontarians with Disabilities Act (AODA), as well as input from key partners, organizations and people with disabilities. The new framework will make a positive difference in the daily lives of people with disabilities.

Today, Raymond Cho, Minister for Seniors and Accessibility, announced Advancing Accessibility in Ontario at the Toronto Pan Am Sports Centre. This cross-government framework will help focus the provinces work in four key areas:

* breaking down barriers in the built environment
* government leading by example
* increasing participation in the economy for people with disabilities and * improving understanding and awareness about accessibility

We know that making Ontario accessible is a journey that cannot be completed overnight or alone. The Advancing Accessibility in Ontario framework will support our work with all of our partners across government and beyond to remove barriers for people with disabilities, said Minister Cho. Our government created a dedicated Ministry for Seniors and Accessibility because we are working towards a more accessible and inclusive province today and for future generations.

As I conducted the third legislative review of the AODA, it became increasingly clear that the people of Ontario wanted an all-of-government commitment to making Ontario far more accessible. This could not be achieved with a single stand-alone ministry attempting to resolve the problem alone, said David C. Onley. That is why I am pleased that the government is coordinating access activities and programs with multiple ministries in an-all-of-government commitment.

The first area in Advancing Accessibility in Ontario breaking down barriers in the built environment shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

For example, the Ontario Building Officials Association is receiving funding from the governments EnAbling Change Program to enhance its curriculum and training on accessibility. By making building officials more aware of the challenges people with disabilities face in accessing buildings and training them about areas of improvement, new and existing buildings can be planned and built to be more accessible.

There are several additional examples that illustrate progress and upcoming initiatives as the government continues its work towards making Ontario accessible.

Ontario is committed to protecting what matters most to people with disabilities.

QUICK FACTS

* There are 2.6 million people in Ontario that have a disability.

* The government is investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.

* Further information on the other key areas in Advancing Accessibility in Ontario will be announced in the coming weeks.

ADDITIONAL RESOURCES

Advancing Accessibility in Ontario: Breaking down barriers in the built environment

Accessibility for Ontarians with Disabilities Act

Accessibility in Ontario: Information for Businesses web page

-30-

MEDIA CONTACTS

Pooja Parekh
Ministers Office
[email protected]

Matt Gloyd
Communications Branch
647-268-7233
[email protected]
ontario.ca/msaa-news
Disponible en français
Ontario Government Backgrounder

Advancing Accessibility in Ontario:
Breaking down barriers in the built environment

BACKGROUNDER
January 28, 2020Advancing Accessibility in Ontario is a cross-government framework that will help focus the governments work in four key areas. The four key areas are:

* breaking down barriers in the built environment
* government leading by example in its role as a policy maker, service provider and employer * increasing participation in the economy for people with disabilities and * improving understanding and awareness about accessibility

The first area in Advancing Accessibility in Ontario breaking down barriers in the built environment shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

Work the government is doing to break down barriers in the built environment includes:

* Making buildings safer and more accessible for people with disabilities by increasing harmonization of Ontarios Building Code with the National Construction Codes. This process is reducing barriers and has resulted in accessibility changes, including new requirements for the design of barrier-free ramps, clearer accessibility requirements in barrier-free washrooms and easier-to-understand requirements for universal washrooms in large buildings and equipment such as grab bars and faucets.

* Investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.

* Improving access to buildings and places for people with disabilities by working with key partners in architecture, design, and building. We are exploring ways to enhance training for those practicing in the field and undertaking discussions with the post-secondary sector to reach a new generation of professionals. For example:
o We are partnering with the Ontario Building Officials Association to enhance its curriculum and training on accessibility, helping to ensure that new and existing buildings can be planned and built to be more accessible.
o The Royal Architecture Institute of Canada is introducing a new course on accessibility to be available March 2020. Introduction to Successful Accessible Design will analyze the impacts of accessibility in society, the built environment, and the development industry. The course will be offered in English and French, both as a complete university graduate level course and as a continuing education course for practicing professionals.

* Making places of worship more accessible so people can connect with their faith groups by funding Our Doors Are Open a free guide created by OCAD University that provides practical information on how places of worship can remove physical barriers to accessibility.

* Helping main street businesses earn more customers and employees by providing them with tips on how to become more accessible through funding a free handbook created by the Ontario Business Improvement Area Association called The Business of Accessibility: How to Make Your Main Street Business Accessibility Smart.

* Giving retailers of all sizes in Ontario practical information on how to make their store more welcoming for customers and staff with disabilities by funding EnAbling Change for Retailers: Make your Store Accessible a free guide created by Retail Council of Canada that covers how stores can implement accessibility in their communications, customer service and recruitment and retention.

* Providing $1.4 billion in funding for the 2019-20 school year to help school boards provide safe and healthy learning environments for students, such as installing important accessibility features like elevators and ramps.

* Ensuring better access for people with disabilities throughout Ontario by continuing to require that all public transportation vehicles bought with provincial funding be accessible.

* Continuing to help Ontario residents with long-term mobility disabilities remain in their homes and participate in their communities by funding the Home & Vehicle Modification Program, which is administered by March of Dimes Canada. With an annual investment of $10.6 million, this program reduces safety risks by approving grants up to $15,000 to make basic home and vehicle modifications.

As the government moves forward with making Ontario more accessible, upcoming work includes:

* Funding free resources and training materials for the building sector through the EnAbling Change Program to further educate associations and employers about how to improve accessibility in the built environment. Many of these resources are available on a comprehensive one-stop-shop government web page that provides businesses and communities with information to help them be more accessible and inclusive.

* We are committed to developing an innovation guide with the Ministry of Municipal Affairs and Housing that will be used to support the implementation of Ontarios Housing Supply Action Plan. The action plan will address housing challenges and support fresh approaches to help make homes more accessible.

MEDIA CONTACTS

Matt Gloyd
Communications Branch
647-268-7233
[email protected]
ontario.ca/msaa-news
Disponible en français




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Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities

January 28, 2020 Toronto: After a year delay, the Ford Government today offered thin gruel to 2.6 million Ontarians with disabilities in its response set out below to the searing report of the Government-appointed Independent Review of the implementation of Ontario’s disability accessibility law conducted by David Onley. On January 31, 2019, the Government received Onley’s blistering report that concluded that for people with disabilities, Ontario is not a place of opportunity, but is instead full of “countless, dispiriting, soul-crushing Barriers”, with progress on accessibility being “barely detectable” and coming at a “glacial” pace.

To fix this, today the Ford Government mainly re-announced existing measures, in place for months or years, primarily focusing on public education efforts that are proven to be insufficient. Among these, it even re-announced a program for purchasing accessible buses that was started a quarter century ago by the Bob Rae Government.

“After a year, this is the best they can do? Premier Ford has still announced no action plan to implement the Onley Report’s important recommendations to strengthen and speed up the implementation and enforcement of the 2005 Accessibility for Ontarians with Disabilities Act. The AODA requires the Government to lead Ontario to become accessible by 2025, under five years from now,” said David Lepofsky, chair of the non-partisan grassroots AODA Alliance that leads the campaign for accessibility in Ontario. “How long must we wait for a real plan to actually implement the Onley Report? A year’s dithering mainly produced a re-announcement of earlier voluntary programs that the Onley Report shows were insufficient to meet the needs of Ontarians with disabilities who want to ride public transit, get an education, use our health care system or get a job.”

The Onley Report found that Ontario has suffered from years of ineffective leadership on accessibility. Today’s announcement shows none of the new leadership by the premier for which the Onley Report called. Indeed, Premier Ford has to date refused to even meet with the AODA Alliance.

Since taking office, the Ford Government has taken steps setting back accessibility, such as:

* For months, it froze the work of five advisory committees, appointed under the AODA to propose new measures to achieve accessibility for Ontarians with disabilities in education, health care, information and communication and employment. The AODA Alliance had to campaign hard to get that unjustified freeze lifted.

* It rejected recommendations to create a long-overdue Accessibility Standard to ensure that buildings in Ontario become accessible. The Ford Government unfairly slammed that proposal as “red tape.” Today’s re-announcement that the Ford Government plans to harmonize the weak Ontario Building Code with the weak federal building code could lead to a further weakening of already-inadequate accessibility protections for Ontarians with disabilities.

* Again re-announced today, it wastefully diverted $1.3 million public dollars into the deeply-flawed and unaccountable Rick Hansen Foundation’s private accessibility certification program – funds which should have been used to create new regulations on building accessibility, rather than having the Hansen Foundation use inadequate standards to have its insufficiently-trained people inspect a meager 250 buildings across all of Ontario.

* It mandated the creation of serious new barriers against people with disabilities by legalizing electric scooters on Ontario roads and sidewalks, endangering accessibility and safety of people with disabilities and others. Today’s announcement says the Ford Government will lead by example on accessibility, but it’s example so far is one that no one should follow.

* It is considering allowing builders to hire the private building inspector of their choice to inspect their construction project – a proposal riddled with conflicts of interest. Here again the Government is showing a weak commitment to accessibility in the built environment, despite the Onley Report’s emphasizing it as a top priority and the Government’s announcement today emphasizing barriers in the built environment.

* It has not committed to ensure that public money is never used to create barriers against Ontarians with disabilities. This is so even though the Government has emphasized its commitment to be responsible in the use of public money.

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

Twitter: @aodaalliance

Text of the Ford Government’s January 28, 2020 Announcement In Response to the Onley Report

Ontario Establishes a New Framework to Continue Progress on Accessibility

Applying Cross-Government Actions to Advance Accessibility

TORONTO — When a society is inclusive and barrier-free, people can fully participate in their communities. Making Ontario a province where communities and businesses are accessible for everyone benefits us all.

The government continues to build momentum in creating a barrier-free Ontario, but a lot of work still needs to be done to make the province accessible for everyone. That is why Ontario has developed a new framework informed by the recommendations made by the Honourable David C. Onley in the third legislative review of the Accessibility for Ontarians with Disabilities Act (AODA), as well as input from key partners, organizations and people with disabilities. The new framework will make a positive difference in the daily lives of people with disabilities.

Today, Raymond Cho, Minister for Seniors and Accessibility, announced Advancing Accessibility in Ontario at the Toronto Pan Am Sports Centre. This cross-government framework will help focus the province’s work in four key areas:

  • breaking down barriers in the built environment
  • government leading by example
  • increasing participation in the economy for people with disabilities and
  • improving understanding and awareness about accessibility

“We know that making Ontario accessible is a journey that cannot be completed overnight or alone. The Advancing Accessibility in Ontario framework will support our work with all of our partners across government and beyond to remove barriers for people with disabilities,” said Minister Cho. “Our government created a dedicated Ministry for Seniors and Accessibility because we are working towards a more accessible and inclusive province today and for future generations.”

“As I conducted the third legislative review of the AODA, it became increasingly clear that the people of Ontario wanted an all-of-government commitment to making Ontario far more accessible. This could not be achieved with a single stand-alone ministry attempting to resolve the problem alone,” said David C. Onley. “That is why I am pleased that the government is coordinating access activities and programs with multiple ministries in an-all-of-government commitment.”

The first area in Advancing Accessibility in Ontario – breaking down barriers in the built environment – shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

For example, the Ontario Building Officials Association is receiving funding from the government’s EnAbling Change Program to enhance its curriculum and training on accessibility. By making building officials more aware of the challenges people with disabilities face in accessing buildings and training them about areas of improvement, new and existing buildings can be planned and built to be more accessible.

There are several additional examples that illustrate progress and upcoming initiatives as the government continues its work towards making Ontario accessible.

Ontario is committed to protecting what matters most to people with disabilities.

QUICK FACTS

  • There are 2.6 million people in Ontario that have a disability.
  • The government is investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.
  • Further information on the other key areas in Advancing Accessibility in Ontario will be announced in the coming weeks.

ADDITIONAL RESOURCES

Advancing Accessibility in Ontario: Breaking down barriers in the built environment

Accessibility for Ontarians with Disabilities Act

 

Accessibility in Ontario: Information for Businesses web page

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Ontario Government Backgrounder

Advancing Accessibility in Ontario:

Breaking down barriers in the built environment

BACKGROUNDER January 28, 2020

Advancing Accessibility in Ontario is a cross-government framework that will help focus the government’s work in four key areas. The four key areas are:

  • breaking down barriers in the built environment
  • government leading by example in its role as a policy maker, service provider and employer
  • increasing participation in the economy for people with disabilities and
  • improving understanding and awareness about accessibility

The first area in Advancing Accessibility in Ontario – breaking down barriers in the built environment – shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

Work the government is doing to break down barriers in the built environment includes:

  • Making buildings safer and more accessible for people with disabilities by increasing harmonization of Ontario’s Building Code with the National Construction Codes. This process is reducing barriers and has resulted in accessibility changes, including new requirements for the design of barrier-free ramps, clearer accessibility requirements in barrier-free washrooms and easier-to-understand requirements for universal washrooms in large buildings and equipment such as grab bars and faucets.
  • Investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.
  • Improving access to buildings and places for people with disabilities by working with key partners in architecture, design, and building. We are exploring ways to enhance training for those practicing in the field and undertaking discussions with the post-secondary sector to reach a new generation of professionals. For example:
    • We are partnering with the Ontario Building Officials Association to enhance its curriculum and training on accessibility, helping to ensure that new and existing buildings can be planned and built to be more accessible.
    • The Royal Architecture Institute of Canada is introducing a new course on accessibility to be available March 2020. Introduction to Successful Accessible Design will analyze the impacts of accessibility in society, the built environment, and the development industry. The course will be offered in English and French, both as a complete university graduate level course and as a continuing education course for practicing professionals.
  • Making places of worship more accessible so people can connect with their faith groups by funding Our Doors Are Open – a free guide created by OCAD University that provides practical information on how places of worship can remove physical barriers to accessibility.
  • Giving retailers of all sizes in Ontario practical information on how to make their store more welcoming for customers and staff with disabilities by funding EnAbling Change for Retailers: Make your Store Accessible – a free guide created by Retail Council of Canada that covers how stores can implement accessibility in their communications, customer service and recruitment and retention.
  • Ensuring better access for people with disabilities throughout Ontario by continuing to require that all public transportation vehicles bought with provincial funding be accessible.
  • Continuing to help Ontario residents with long-term mobility disabilities remain in their homes and participate in their communities by funding the Home & Vehicle Modification Program, which is administered by March of Dimes Canada. With an annual investment of $10.6 million, this program reduces safety risks by approving grants up to $15,000 to make basic home and vehicle modifications.

As the government moves forward with making Ontario more accessible, upcoming work includes:

  • Funding free resources and training materials for the building sector through the EnAbling Change Program to further educate associations and employers about how to improve accessibility in the built environment. Many of these resources are available on a comprehensive one-stop-shop government web page that provides businesses and communities with information to help them be more accessible and inclusive.
  • We are committed to developing an innovation guide with the Ministry of Municipal Affairs and Housing that will be used to support the implementation of Ontario’s Housing Supply Action Plan. The action plan will address housing challenges and support fresh approaches to help make homes more accessible.
   
MEDIA CONTACTS

Matt Gloyd

Communications Branch

647-268-7233

[email protected]

ontario.ca/msaa-news

Disponible en français



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