With CBC’s Strong Commitment to Diversity and Equity in Its Programming, Why Won’t Its Flagship National Radio Program “The Current” Cover Disability Discrimination Dangers in Critical Care Triage Plans During the COVID-19 Pandemic?


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

June 7, 2021

SUMMARY

Who watches the watchers? The AODA Alliance has had to do so, when it comes to monitoring media coverage or lack of coverage of the danger since the start of the COVID-19pandemic of disability discrimination in access to life-saving critical care in Ontario hospitals.

Since this danger was first revealed by disability advocates in early April 2020, we and others have been trying hard to get the media to cover this story. From the start, it has had all the hallmarks of a compelling news and public affairs story that is immediate, important and interesting. It has serious ramifications for millions of vulnerable people.

It is a life-and-death topic. It deals with secret Government policies and plans. It raises important human rights issues. Media scrutiny is an important way to hold public officials accountable.

For over a year, it has been an extremely uphill battle to get the media to cover this story. After months of effort, we managed to get some good local and national coverage in recent weeks. That shows how newsworthy it is. Yet the difficulties in even belatedly getting that coverage is itself worthy of attention and scrutiny.

The media often portrays itself as the public’s watchdog, but who watches the watchers? We offer an important illustration in this update.

As a powerful example, CBC’s flagship current affairs radio program The Current has refused to cover this story. That program has a great track record on diversity issues, such as those relating to women, Indigenous Peoples, racialized communities, and LGBT issues. It has chronically had a far worse record on covering disability issues. Its stated reasons for refusing to cover this story, documented below in an email from its executive producer to AODA Alliance Chair David Lepofsky, are transparently unpersuasive. One is left wondering what is really going on there. Read on.

In pointing to this example, we acknowledge with thanks that a number of news organizations have covered the issue of disability discrimination in Ontario’s critical care triage plans. Moreover, a number of journalists have tried to get their own media organizations to cover this issue, only to run into disturbing resistance. Moreover, some other CBC programs later did cover this story, though some gave it lesser or no examination.

This critical care triage issue remains a current story (pun intended). The Current should cover it, as should other news and public affairs programs that have not yet looked into it. Even with infection rates dropping in Ontario, there has still been no proper public accounting for the disability discrimination that has been embedded in Ontario hospitals and potentially in emergency ambulance services. With the pandemic’s surge in Manitoba, people with disabilities there now face the same dangers that Ontarians with disabilities have feared for months.

CBC at all levels needs to now carefully investigate and reflect upon its own troubling track record on covering disabilities issues, as it is serious failure to meet CBC’s commendable public commitment to diversity and equity in its coverage. This Update provides one stark and clear illustration of this broader failure. By this we don’t mean that CBC never covers disability issues. Rather, its attention to them pales in comparison to its coverage of other equity and diversity perspectives, as this Update’s example exemplifies.

To learn more about this issue, and to read the media coverage that we have managed to secure, check out the AODA Alliance’s health care page. You can also watch our newest captioned video on the critical care triage issue, which has been seen over 1,000 times in its first four weeks online.

More Details

1. The Current Is Certainly Not Current When It Comes to Disability Issues

Some two years ago, when the previous host of CBC’s program The Current was soon to retire, CBC held focus groups to get input into the future of The Current. AODA Alliance Chair David Lepofsky was invited to take part in one of those focus groups, to offer a disability perspective on the program. In preparation for that focus group, Lepofsky conducted a detailed review of months of broadcasts of The Current.

At this focus group (which looked at The Current from a wide range of perspectives), Lepofsky explained that this excellent CBC public affairs program does a great job of fulfilling CBC’s important public commitment to diversity in its coverage when it comes to some equity-seeking groups, such as racialized communities, Indigenous Peoples, women and the LGBTQ+ community. However, it has a poor record of far less attention to disability issues. Equity for some is in reality equity for none. No one disputed the observation that CBC’s The Current program has not given disability issues the kind of attention that it has repeatedly given other equity-seeking groups.

Sadly, nothing has significantly improved at The Current since that focus group two years ago, from the disability perspective. This is so even though we have sent the program any number of story ideas both before and after that focus group session.

The Current’s failure to address the disability issues in critical care triage during the COVID-19pandemic at any time over the past 15 months is a blistering illustration of this systemic failure. That program has commendably covered the pandemic from a multitude of perspectives. AODA Alliance Chair David Lepofsky sent The Current’s executive producer Raj Ahluwalia a detailed email on January 4, 2021, (set out below. It described this story idea, explained its importance, and offered to help the program look into it.

Raj Ahluwalia replied by email on January 5, 2021 (also set out below). He rejected the story as a topic for The Current. That rejection has never changed.

On January 8 and 18, 2021, AODA Alliance Chair David Lepofsky wrote him back (see below). He refuted The Current’s reasons for rejecting the story. Mr. Ahluwalia did not answer those emails. After this email exchange, The Current never reached out to the AODA Alliance to investigate the possibility of covering disability issues in critical care triage.

Raj Ahluwalia’s written reasons for rejecting this story are seriously flawed, both for reasons that David Lepofsky gave at the time, and in light of subsequent events. For example:

1. Mr. Ahluwalia told us that the critical care triage topic is not suited for the format of The Current. Yet Just 13 days later, on January 18, 2021, The Current devoted a segment of its program to the critical care triage issue. Moreover, as David Lepofsky pointed out to Mr. Ahluwalia, TVO’s The Agenda with Steve Paikin, a very similar TV public affairs program, devoted a 30-minute segment on January 13, 2021 to the disability issues in critical care triage. If it is suitable for The Agenda, it is hard to see why it would be unsuitable for The Current.

2. When The Current did discuss the critical care triage issue on its January 18, 2021 program, it did not include any disability experts or advocates. It only included physicians. The host Matt Galloway had a great record covering disability issues earlier when he had been the host of CBC’s Toronto radio program Metro Morning. However, in this edition of The Current, he asked no questions of the physicians he interviewed, that raised any of disability issues.

3. Mr. Ahluwalia wrote on January 5, 2021 that the disability critical care triage issue was not suitable because it was hypothetical i.e. No one had died from a critical care triage decision. Yet that reason did not stop The Current from interviewing physicians about critical care triage just 13 days later on its January 18, 2021 program. Moreover, as David Lepofsky pointed out to Mr. Ahluwalia, The Current has elsewhere covered hypothetical topics.

We point to this example not to single out this one senior, very experienced CBC executive. Rather, we point it out because it is the best, and possibly the only example where a refusal to cover this important disability issue is based on reasons that were put in writing for us. When the reasons given are so transparently unconvincing, one is left to wonder whether there were other reasons at play, even unconsciously.

We urge CBC at the highest levels to look into this, and to consider why it has failed to live up to its commitment to diversity in its coverage in the disability context, especially when it has done so much better at implementing its diversity goals for certain other equity seeking groups. We are encouraged that CBC weeks later gave more coverage on some other programs to the disability-related critical care triage issue. However, that coverage was the product of months and months of efforts by us and others to get CBC to cover it at all.

As stated earlier, equity for some is equity for none. Diversity for some, is diversity for none. Equality for some is equality for none. It merely replaces and old hierarchy with a new one. In the new one, just as in the old one, those left at or near the bottom, like people with disabilities, remain wrongly languishing at the bottom.

2. January 4, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current Executive Producer Raj Ahluwalia

Happy new year Raj! In a nutshell, the story I’m proposing is summarized in the news release set out below. We can supply it to your program based on on-the-record and publicly-posted sources and multiple on-the-record people.

The issue is this: If the surging pandemic exceeds hospital capacity to provide life-saving critical care to all the patients who need it, who will be refused that care, and thus, who will die from a lack of health care? Who will decide who will be denied that care? What rules or standard will govern that life-and-death decision? Will there be any independent check is in place to protect patients, like an independent appeal process? Is there any foundation in law for any of this to take place in Ontario?

This is an important issue now. South of the border, NPR has done excellent investigative work revealing terrifying and appalling disability-based discrimination in access to critical care. Check out https://www.npr.org/2020/12/21/946292119/oregon-hospitals-didnt-have-shortages-so-why-were-disabled-people-denied-care People with disabilities are already fearful of going to hospital, even if no critical care triage is now going on, because they fear the danger of being de-prioritized now or in the near future.

We and other disability advocates have been waging an incredibly frustrating uphill battle on this issue for months. In the past weeks, it has gotten very little media coverage, including from CBC. We have no idea why. On the rare occasion that an opposition MPP or reporter probes the Ford Government on this issue, the Government scrambles, dodges or prevaricates. The whole record on this is available to you at www.aodaalliance.org/healthcare

People with disabilities are especially vulnerable here. They are disproportionately bearing the brunt of COVID-19 and are disproportionately dying from it. It would be a cruel irony indeed for them, of all people, to be exposed to the risk of disability-based discriminatory critical care triage. Happy to fill in the details any time. Please do not leave any voice mails on that number.

****

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

Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities

December 21, 2020 Toronto: Could it soon be that if COVID-19 overwhelms Ontario hospitals, doctors could be told to decide to select some critical care patients to be taken off life-saving critical care that the patients are receiving, still need and want, on the ground that these services must be rationed and given to some other patients? Could a patient who objects to critical care being withdrawn from them be denied a right of appeal to an independent court or tribunal, even though their life is endangered? Could the health professionals making such decisions be insulated from any liability for their actions?

Despite excitement over new vaccines, frightening unreported new details have emerged that would allow all of this to happen, if the record-breaking surge in COVID-19 cases requires hospitals to ration or triage life-saving critical care services and beds. The Ford Government is considering a recommendation, made public on the AODA Alliance website, to direct doctors to remove life-saving critical care from some patients already in intensive care who don’t consent to this, if triage becomes necessary. This is even worse than rationing scarce unfilled critical care beds when more patients need them than there are available services.

Ford’s Government hasn’t shown it has legislative authority to take the drastic, highly-objectionable actions that it is considering, said David Lepofsky, Chair of the non-partisan AODA Alliance that allies with other disability advocates to protect patients with disabilities against discrimination if triage becomes necessary. Triage recommendations that Ford’s Government is considering just came to light in the past days, and only because disability advocates campaigned for three months to get the Government to reveal those secret recommendations.

In those newly revealed September 11, 2020 recommendations, the Government’s external advisory Bioethics Table commendably called on the Government to rescind the Government’s controversial earlier March 28, 2020 critical triage protocol that it had sent Ontario hospitals last spring, because that protocol discriminated against patients based on their disabilities a concern disability advocates have pressed since April. But last Thursday, at a rushed roundtable that the Ontario Human Rights Commission held with disability, racialized and Indigenous communities’ representatives, those community representatives said the newly revealed triage recommendations, while an improvement, also have numerous human rights problems, even though the recommendations say that human rights should be respected.

These new triage recommendations would give patients, whose lives are in jeopardy, no appeal beyond the health care system (e.g., to an independent tribunal or court). They would insulate health care professionals against liability for refusing or withdrawing life-saving critical care.

On October 29, 2020, the Government, under pressure from people with disabilities and seniors, belatedly rescinded its discriminatory March 28, 2020 triage protocol, but put nothing in place to fill the vacuum. The time when critical care triage may be needed is rapidly getting closer. Health Minister Christine Elliott hasn’t answered any of the six successive AODA Alliance letters to her extensively detailing our concerns.

At last Thursday’s roundtable, a Government representative spoke up for the first time, revealing more disturbing news. A member of the Ford Government’s internal Critical Care Command Table responded to feedback at the roundtable, saying that a new approach to triage, addressing human rights concerns raised at the roundtable (with which he seemed to find merit), would have to wait until after this pandemic is over.

That’s like saying we can be given an umbrella only after the rain has stopped. After months of the Government delaying, refusing to talk to us, and hiding behind its external advisory Bioethics Table for months, we cannot accept that it is now too late to ensure that critical care triage, if necessary, cannot be done without disability discrimination, said Lepofsky. We need the Ford Government to speak directly to us, and to obey the Ontario Human Rights Code and Charter of Rights.

Contact: AODA Alliance Chair David Lepofsky, [email protected] For more background on this issue, check out:
1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
7. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

3. January 5, 2021 Email from CBC The Current’s Executive Producer Raj Ahluwalia to AODA Alliance Chair David Lepofsky

Thanks for bringing it to my attention.

I’ve looked through some of what you’ve included here. And while I appreciate and understand your concerns and see that there may be a news story here but it doesn’t work for The Current.

Please allow me to explain.

The situation you describe is hypothetical. Unless there is an actual case of someone, disabled or not, who’s denied care in this manner, I have a hard time “seeing” where a story could editorially go.

I’m also not keen in comparing much from the U. S healthcare system with that of Canada’s. That’s not to say that we’re better than them, it’s just that the systems are so different that any comparisons are inaccurate.

As you may know our stories run anywhere from 12-to 20-minutues, usually through a series of interviews. And unless there were to be an actual case, as I mentioned, any real discussion of the issues you bring up won’t sustain that length of time on our program.

I will, however, keep your suggestions in mind should there be such a case.
4. January 8, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current’s Executive Producer Raj Ahluwalia

Thank you for taking the time to explain why you do not consider the critical care triage story to be appropriate now for The Current. Exceptional as this may be, may I invite you to reconsider.

You said this story is hypothetical until triage of critical care actually takes place, leading a person to die from a refusal of critical care. Yet this issue is not hypothetical.

The top story on CBC national radio’s January 5, 2021 The World at 6 (within hours of your writing me) reported that in some Ontario cities, intensive care units are full and tents are being erected. The first line of that newscast reported that the health care system is stretched beyond capacity. It reported that urgent measures are being taken because the system reached the breaking point. Moreover, the US mainstream media is reporting that critical care triage is in fact happening in some US venues.

It is therefore not hypothetical that our society and health care system must ensure that it is ready to administer critical care triage in this pandemic, even if such triage has not taken place. It is not hypothetical that this is a difficult issue and that Ontario has no prior experience triaging life-saving critical care.

It is not hypothetical that the Ontario Government had a secret protocol prepared last spring for this very purpose. It is not hypothetical that the Government was eventually driven to rescind that protocol just weeks ago. It is not hypothetical that it was only rescinded after it was criticized as disability-discriminatory by disability advocates, by the Ontario Human Rights Commission and, eventually, by the very Bioethics Table that initially designed it.

It is not hypothetical that the Government has not announced a new protocol, and that it has been very secretive about this issue. The Government has not answered any of our letters this fall raising such concerns. It is similarly not hypothetical that some people with disabilities are afraid to seek out the health care system, for fear that they could end up being the victims of triage.

In any event, even if it were hypothetical, this should not be a reason to consider this story inappropriate for The Current. The Current has covered issues that are, by your terms, clearly hypothetical. On December 10, 2020, your program aired an item entitled: Trump Could Push Baseless Election Cheating Claims Well Past Inauguration, Says Journalist. Of course, that was an important topic to cover. However, by your definition of hypothetical, that story should not have run until after inauguration, and until Trump actually repeats his baseless claims at that time.

This story is well-suited for your program’s format, with which I, as a listener, am well familiar. Your program does not inflexibly always require an initial interview with a victim before an important issue is addressed. This meaty issue can fill your typical program time allocation with a great deal still left unaddressed. Ontario’s flagship provincial public affairs program, The Agenda with Steve Paikin aired a 26 minute item on the issue (with no disability advocates) back on April 14, 2020 that ran for a full 26minutes https://www.tvo.org/video/deciding-who-lives-ethics-in-a-pandemic
There is much more to say about the subject now, more than 8 months later. As one example, look at the coverage that has just gone online from one local Mississauga online publication, https://thepointer.com/article/2021-01-08/already-in-crisis-mode-ontario-hospitals-have-no-protocol-for-who-gets-priority-treatment-human-rights-advocates-say There are a number of people on different sides of this issue worth speaking to. We would be happy to assist your program in learning about those issues and seeking out people with whom to speak.

We regret that CBC news has, until now, not covered our issues that we have raised for months on this issue, despite numerous news releases, and tweets directed at CBC. As Canada’s public broadcaster, its failure to do so is troubling and puzzling.
We will continue to try to raise this with CBC news, but it remains a story that is extremely well-suited for The Current. Please let me know if you might reconsider, and if we can help.

5. January 18, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current’s Executive Producer Raj Ahluwalia

Dear Raj,

It is good that The Current today included a discussion of the COVID-19 critical care triage issue, as this is an immediate and important story. The item included a discussion with two doctors expressing their views and concerns on this issue.

Could your program now consider including a discussion of this issue from the perspective of people with disabilities? That would provide a much-needed balanced look at it, especially since we have identified and documented serious disability human rights concerns with Ontario’s brand new secret triage protocol (one which we have posted on line). It is vital that this issue not be seen or treated as some preserve of doctors and bioethicists. People with disabilities are disproportionately bearing the hardships of COVID-19 and its harshest impact. They are at risk of the cruel irony of facing discriminatory deprioritization if they need critical care, once triage begins.

Two years ago, CBC invited me to take part in a focus group on the future of The Current. At that meeting, I detailed how The Current does an excellent job of addressing a spectrum of important issues on the issue of diversity from the perspective of a number of equality-seeking groups, for which it should be strongly commended. However, it is far weaker at covering important disability issues.

For you to get a good sense of how this story merits the disability perspective, and not just the medical/bioethics perspective, please check out the panel on which I participated last Wednesday on The Agenda with Steve Paikin, available at https://www.youtube.com/watch?v=qkq1NmaXLwk&feature=youtu.be

I’d be happy to do whatever I can to assist your program.

Stay safe.

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance




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With CBC’s Strong Commitment to Diversity and Equity in Its Programming, Why Won’t Its Flagship National Radio Program “The Current” Cover Disability Discrimination Dangers in Critical Care Triage Plans During the COVID-19 Pandemic?


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/

With CBC’s Strong Commitment to Diversity and Equity in Its Programming, Why Won’t Its Flagship National Radio Program “The Current” Cover Disability Discrimination Dangers in Critical Care Triage Plans During the COVID-19 Pandemic?

June 7, 2021

            SUMMARY

Who watches the watchers? The AODA Alliance has had to do so, when it comes to monitoring media coverage or lack of coverage of the danger since the start of the COVID-19pandemic of disability discrimination in access to life-saving critical care in Ontario hospitals.

Since this danger was first revealed by disability advocates in early April 2020, we and others have been trying hard to get the media to cover this story. From the start, it has had all the hallmarks of a compelling news and public affairs story that is immediate, important and interesting. It has serious ramifications for millions of vulnerable people.

It is a life-and-death topic. It deals with secret Government policies and plans. It raises important human rights issues. Media scrutiny is an important way to hold public officials accountable.

For over a year, it has been an extremely uphill battle to get the media to cover this story. After months of effort, we managed to get some good local and national coverage in recent weeks. That shows how newsworthy it is. Yet the difficulties in even belatedly getting that coverage is itself worthy of attention and scrutiny.

The media often portrays itself as the public’s watchdog, but who watches the watchers? We offer an important illustration in this update.

As a powerful example, CBC’s flagship current affairs radio program “The Current” has refused to cover this story. That program has a great track record on diversity issues, such as those relating to women, Indigenous Peoples, racialized communities, and LGBT issues. It has chronically had a far worse record on covering disability issues. Its stated reasons for refusing to cover this story, documented below in an email from its executive producer to AODA Alliance Chair David Lepofsky, are transparently unpersuasive. One is left wondering what is really going on there. Read on.

In pointing to this example, we acknowledge with thanks that a number of news organizations have covered the issue of disability discrimination in Ontario’s critical care triage plans. Moreover, a number of journalists have tried to get their own media organizations to cover this issue, only to run into disturbing resistance. Moreover, some other CBC programs later did cover this story, though some gave it lesser or no examination.

This critical care triage issue remains a current story (pun intended). The Current should cover it, as should other news and public affairs programs that have not yet looked into it. Even with infection rates dropping in Ontario, there has still been no proper public accounting for the disability discrimination that has been embedded in Ontario hospitals and potentially in emergency ambulance services. With the pandemic’s surge in Manitoba, people with disabilities there now face the same dangers that Ontarians with disabilities have feared for months.

CBC at all levels needs to now carefully investigate and reflect upon its own troubling track record on covering disabilities issues, as it is serious failure to meet CBC’s commendable public commitment to diversity and equity in its coverage. This Update provides one stark and clear illustration of this broader failure. By this we don’t mean that CBC never covers disability issues. Rather, its attention to them pales in comparison to its coverage of other equity and diversity perspectives, as this Update’s example exemplifies.

To learn more about this issue, and to read the media coverage that we have managed to secure, check out the AODA Alliance’s health care page. You can also watch our newest captioned video on the critical care triage issue, which has been seen over 1,000 times in its first four weeks online.

 More Details

 1. The Current Is Certainly Not Current When It Comes to Disability Issues

Some two years ago, when the previous host of CBC’s program The Current was soon to retire, CBC held focus groups to get input into the future of The Current. AODA Alliance Chair David Lepofsky was invited to take part in one of those focus groups, to offer a disability perspective on the program. In preparation for that focus group, Lepofsky conducted a detailed review of months of broadcasts of The Current.

At this focus group (which looked at The Current from a wide range of perspectives), Lepofsky explained that this excellent CBC public affairs program does a great job of fulfilling CBC’s important public commitment to diversity in its coverage when it comes to some equity-seeking groups, such as racialized communities, Indigenous Peoples, women and the LGBTQ+ community. However, it has a poor record of far less attention to disability issues. Equity for some is in reality equity for none. No one disputed the observation that CBC’s The Current program has not given disability issues the kind of attention that it has repeatedly given other equity-seeking groups.

Sadly, nothing has significantly improved at The Current since that focus group two years ago, from the disability perspective. This is so even though we have sent the program any number of story ideas both before and after that focus group session.

The Current’s failure to address the disability issues in critical care triage during the COVID-19pandemic at any time over the past 15 months is a blistering illustration of this systemic failure. That program has commendably covered the pandemic from a multitude of perspectives. AODA Alliance Chair David Lepofsky sent The Current’s executive producer Raj Ahluwalia a detailed email on January 4, 2021, (set out below. It described this story idea, explained its importance, and offered to help the program look into it.

Raj Ahluwalia replied by email on January 5, 2021 (also set out below). He rejected the story as a topic for The Current. That rejection has never changed.

On January 8 and 18, 2021, AODA Alliance Chair David Lepofsky wrote him back (see below). He refuted The Current’s reasons for rejecting the story. Mr. Ahluwalia did not answer those emails. After this email exchange, The Current never reached out to the AODA Alliance to investigate the possibility of covering disability issues in critical care triage.

Raj Ahluwalia’s written reasons for rejecting this story are seriously flawed, both for reasons that David Lepofsky gave at the time, and in light of subsequent events. For example:

  1. Mr. Ahluwalia told us that the critical care triage topic is not suited for the format of The Current. Yet Just 13 days later, on January 18, 2021, The Current devoted a segment of its program to the critical care triage issue. Moreover, as David Lepofsky pointed out to Mr. Ahluwalia, TVO’s The Agenda with Steve Paikin, a very similar TV public affairs program, devoted a 30-minute segment on January 13, 2021 to the disability issues in critical care triage. If it is suitable for The Agenda, it is hard to see why it would be unsuitable for The Current.
  1. When The Current did discuss the critical care triage issue on its January 18, 2021 program, it did not include any disability experts or advocates. It only included physicians. The host Matt Galloway had a great record covering disability issues earlier when he had been the host of CBC’s Toronto radio program Metro Morning. However, in this edition of The Current, he asked no questions of the physicians he interviewed, that raised any of disability issues.
  1. Mr. Ahluwalia wrote on January 5, 2021 that the disability critical care triage issue was not suitable because it was hypothetical i.e. No one had died from a critical care triage decision. Yet that reason did not stop The Current from interviewing physicians about critical care triage just 13 days later on its January 18, 2021 program. Moreover, as David Lepofsky pointed out to Mr. Ahluwalia, The Current has elsewhere covered hypothetical topics.

We point to this example not to single out this one senior, very experienced CBC executive. Rather, we point it out because it is the best, and possibly the only example where a refusal to cover this important disability issue is based on reasons that were put in writing for us. When the reasons given are so transparently unconvincing, one is left to wonder whether there were other reasons at play, even unconsciously.

We urge CBC at the highest levels to look into this, and to consider why it has failed to live up to its commitment to diversity in its coverage in the disability context, especially when it has done so much better at implementing its diversity goals for certain other equity seeking groups. We are encouraged that CBC weeks later gave more coverage on some other programs to the disability-related critical care triage issue. However, that coverage was the product of months and months of efforts by us and others to get CBC to cover it at all.

As stated earlier, equity for some is equity for none. Diversity for some, is diversity for none. Equality for some is equality for none. It merely replaces and old hierarchy with a new one. In the new one, just as in the old one, those left at or near the bottom, like people with disabilities, remain wrongly languishing at the bottom.

 2. January 4, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current Executive Producer Raj Ahluwalia

Happy new year Raj! In a nutshell, the story I’m proposing is summarized in the news release set out below. We can supply it to your program based on on-the-record and publicly-posted sources and multiple on-the-record people.

The issue is this: If the surging pandemic exceeds hospital capacity to provide life-saving critical care to all the patients who need it, who will be refused that care, and thus, who will die from a lack of health care? Who will decide who will be denied that care? What rules or standard will govern that life-and-death decision? Will there be any independent check is in place to protect patients, like an independent appeal process? Is there any foundation in law for any of this to take place in Ontario?

This is an important issue now. South of the border, NPR has done excellent investigative work revealing terrifying and appalling disability-based discrimination in access to critical care. Check out https://www.npr.org/2020/12/21/946292119/oregon-hospitals-didnt-have-shortages-so-why-were-disabled-people-denied-care

People with disabilities are already fearful of going to hospital, even if no critical care triage is now going on, because they fear the danger of being de-prioritized now or in the near future.

We and other disability advocates have been waging an incredibly frustrating uphill battle on this issue for months. In the past weeks, it has gotten very little media coverage, including from CBC. We have no idea why. On the rare occasion that an opposition MPP or reporter probes the Ford Government on this issue, the Government scrambles, dodges or prevaricates. The whole record on this is available to you at

www.aodaalliance.org/healthcare

People with disabilities are especially vulnerable here. They are disproportionately bearing the brunt of COVID-19 and are disproportionately dying from it. It would be a cruel irony indeed for them, of all people, to be exposed to the risk of disability-based discriminatory critical care triage. Happy to fill in the details any time. … Please do not leave any voice mails on that number.

****

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities

December 21, 2020 Toronto: Could it soon be that if COVID-19 overwhelms Ontario hospitals, doctors could be told to decide to select some critical care patients to be taken off life-saving critical care that the patients are receiving, still need and want, on the ground that these services must be rationed and given to some other patients? Could a patient who objects to critical care being withdrawn from them be denied a right of appeal to an independent court or tribunal, even though their life is endangered? Could the health professionals making such decisions be insulated from any liability for their actions?

Despite excitement over new vaccines, frightening unreported new details have emerged that would allow all of this to happen, if the record-breaking surge in COVID-19 cases requires hospitals to ration or “triage” life-saving critical care services and beds. The Ford Government is considering a recommendation, made public on the AODA Alliance website, to direct doctors to remove life-saving critical care from some patients already in intensive care who don’t consent to this, if triage becomes necessary. This is even worse than rationing scarce unfilled critical care beds when more patients need them than there are available services.

“Ford’s Government hasn’t shown it has legislative authority to take the drastic, highly-objectionable actions that it is considering,” said David Lepofsky, Chair of the non-partisan AODA Alliance that allies with other disability advocates to protect patients with disabilities against discrimination if triage becomes necessary. “Triage recommendations that Ford’s Government is considering just came to light in the past days, and only because disability advocates campaigned for three months to get the Government to reveal those secret recommendations.”

In those newly revealed September 11, 2020 recommendations, the Government’s external advisory Bioethics Table commendably called on the Government to rescind the Government’s controversial earlier March 28, 2020 critical triage protocol that it had sent Ontario hospitals last spring, because that protocol discriminated against patients based on their disabilities – a concern disability advocates have pressed since April. But last Thursday, at a rushed roundtable that the Ontario Human Rights Commission held with disability, racialized and Indigenous communities’ representatives, those community representatives said the newly revealed triage recommendations, while an improvement, also have numerous human rights problems, even though the recommendations say that human rights should be respected.

These new triage recommendations would give patients, whose lives are in jeopardy, no appeal beyond the health care system (e.g., to an independent tribunal or court). They would insulate health care professionals against liability for refusing or withdrawing life-saving critical care.

On October 29, 2020, the Government, under pressure from people with disabilities and seniors, belatedly rescinded its discriminatory March 28, 2020 triage protocol, but put nothing in place to fill the vacuum. The time when critical care triage may be needed is rapidly getting closer. Health Minister Christine Elliott hasn’t answered any of the six successive AODA Alliance letters to her extensively detailing our concerns.

At last Thursday’s roundtable, a Government representative spoke up for the first time, revealing more disturbing news. A member of the Ford Government’s internal “Critical Care Command Table” responded to feedback at the roundtable, saying that a new approach to triage, addressing human rights concerns raised at the roundtable (with which he seemed to find merit), would have to wait until after this pandemic is over.

“That’s like saying we can be given an umbrella only after the rain has stopped. After months of the Government delaying, refusing to talk to us, and hiding behind its external advisory Bioethics Table for months, we cannot accept that it is now too late to ensure that critical care triage, if necessary, cannot be done without disability discrimination,” said Lepofsky. “We need the Ford Government to speak directly to us, and to obey the Ontario Human Rights Code and Charter of Rights.”

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

For more background on this issue, check out:

  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  7. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

 3. January 5, 2021 Email from CBC The Current’s Executive Producer Raj Ahluwalia to AODA Alliance Chair David Lepofsky

Thanks for bringing it to my attention.

I’ve looked through some of what you’ve included here. And while I appreciate and understand your concerns and see that there may be a news story here but it doesn’t work for The Current.

Please allow me to explain.

The situation you describe is hypothetical. Unless there is an actual case of someone, disabled or not, who’s denied care in this manner, I have a hard time “seeing” where a story could editorially go.

I’m also not keen in comparing much from the U. S healthcare system with that of Canada’s. That’s not to say that we’re better than them, it’s just that

the systems are so different that any comparisons are inaccurate.

As you may know our stories run anywhere from 12-to 20-minutues, usually through a series of interviews. And unless there were to be an actual case, as I mentioned, any real discussion of the issues you bring up won’t sustain that length of time on our program.

I will, however, keep your suggestions in mind should there be such a case.

 4. January 8, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current’s Executive Producer Raj Ahluwalia

Thank you for taking the time to explain why you do not consider the critical care triage story to be appropriate now for The Current. Exceptional as this may be, may I invite you to reconsider.

You said this story is hypothetical until triage of critical care actually takes place, leading a person to die from a refusal of critical care. Yet this issue is not hypothetical.

The top story on CBC national radio’s January 5, 2021 “The World at 6” (within hours of your writing me) reported that in some Ontario cities, intensive care units are full and tents are being erected. The first line of that newscast reported that the health care system is stretched beyond capacity. It reported that urgent measures are being taken because the system reached the breaking point. Moreover, the US mainstream media is reporting that critical care triage is in fact happening in some US venues.

It is therefore not hypothetical that our society and health care system must ensure that it is ready to administer critical care triage in this pandemic, even if such triage has not taken place. It is not hypothetical that this is a difficult issue and that Ontario has no prior experience triaging life-saving critical care.

It is not hypothetical that the Ontario Government had a secret protocol prepared last spring for this very purpose. It is not hypothetical that the Government was eventually driven to rescind that protocol just weeks ago. It is not hypothetical that it was only rescinded after it was criticized as disability-discriminatory by disability advocates, by the Ontario Human Rights Commission and, eventually, by the very Bioethics Table that initially designed it.

It is not hypothetical that the Government has not announced a new protocol, and that it has been very secretive about this issue. The Government has not answered any of our letters this fall raising such concerns. It is similarly not hypothetical that some people with disabilities are afraid to seek out the health care system, for fear that they could end up being the victims of triage.

In any event, even if it were hypothetical, this should not be a reason to consider this story inappropriate for The Current. The Current has covered issues that are, by your terms, clearly hypothetical. On December 10, 2020, your program aired an item entitled: “Trump Could Push Baseless Election Cheating Claims Well Past Inauguration, Says Journalist.” Of course, that was an important topic to cover. However, by your definition of “hypothetical”, that story should not have run until after inauguration, and until Trump actually repeats his baseless claims at that time.

This story is well-suited for your program’s format, with which I, as a listener, am well familiar. Your program does not inflexibly always require an initial interview with a victim before an important issue is addressed. This meaty issue can fill your typical program time allocation with a great deal still left unaddressed. Ontario’s flagship provincial public affairs program, “The Agenda with Steve Paikin” aired a 26 minute item on the issue (with no disability advocates) back on April 14, 2020 that ran for a full 26minutes https://www.tvo.org/video/deciding-who-lives-ethics-in-a-pandemic

There is much more to say about the subject now, more than 8 months later. As one example, look at the coverage that has just gone online from one local Mississauga online publication, https://thepointer.com/article/2021-01-08/already-in-crisis-mode-ontario-hospitals-have-no-protocol-for-who-gets-priority-treatment-human-rights-advocates-say

There are a number of people on different sides of this issue worth speaking to. We would be happy to assist your program in learning about those issues and seeking out people with whom to speak.

We regret that CBC news has, until now, not covered our issues that we have raised for months on this issue, despite numerous news releases, and tweets directed at CBC. As Canada’s public broadcaster, its failure to do so is troubling and puzzling.

We will continue to try to raise this with CBC news, but it remains a story that is extremely well-suited for The Current. Please let me know if you might reconsider, and if we can help.”

 5. January 18, 2021 Email from AODA Alliance Chair David Lepofsky to CBC The Current’s Executive Producer Raj Ahluwalia

Dear Raj,

It is good that The Current today included a discussion of the COVID-19 critical care triage issue, as this is an immediate and important story. The item included a discussion with two doctors expressing their views and concerns on this issue.

Could your program now consider including a discussion of this issue from the perspective of people with disabilities? That would provide a much-needed balanced look at it, especially since we have identified and documented serious disability human rights concerns with Ontario’s brand new secret triage protocol (one which we have posted on line). It is vital that this issue not be seen or treated as some preserve of doctors and bioethicists. People with disabilities are disproportionately bearing the hardships of COVID-19 and its harshest impact. They are at risk of the cruel irony of facing discriminatory deprioritization if they need critical care, once triage begins.

Two years ago, CBC invited me to take part in a focus group on the future of The Current. At that meeting, I detailed how The Current does an excellent job of addressing a spectrum of important issues on the issue of diversity from the perspective of a number of equality-seeking groups, for which it should be strongly commended. However, it is far weaker at covering important disability issues.

For you to get a good sense of how this story merits the disability perspective, and not just the medical/bioethics perspective, please check out the panel on which I participated last Wednesday on The Agenda with Steve Paikin, available at https://www.youtube.com/watch?v=qkq1NmaXLwk&feature=youtu.be

I’d be happy to do whatever I can to assist your program.

Stay safe.

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance



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In a Detailed Report Card Delivered During National AccessAbility Week, the Ford Government Gets a Blistering “F” Grade for Its Three Year Record Since Taking Office on Action to Make Ontario Accessible for 2.6 Million Ontarians with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

In a Detailed Report Card Delivered During National AccessAbility Week, the Ford Government Gets a Blistering “F” Grade for Its Three Year Record Since Taking Office on Action to Make Ontario Accessible for 2.6 Million Ontarians with Disabilities

May 31, 2021 Toronto: During National AccessAbility Week, the non-partisan grassroots AODA Alliance releases a report card (set out below) on the Ford Government’s record for tearing down the barriers that people with disabilities face, awarding the Government an “F” grade.

When he was campaigning for votes in the 2018 election, Doug Ford said that our issues “are close to the hearts of our Ontario PC Caucus” and that:

“Too many Ontarians with disabilities still face barriers when they try to get a job, ride public transit, get an education, use our healthcare system, buy goods or services, or eat in restaurants.”

Yet three years after taking office, people with disabilities are no better off, and in some important ways, are worse off, according to today’s new report card. Passed unanimously in 2005, the Accessibility for Ontarians with Disabilities Act requires the Ontario Government to lead this province to become accessible to people with disabilities by 2025. Ontario is nowhere near that goal with under four years left. The Ford Government has no effective plan to meet that deadline.

This report card’s key findings include:

  1. The Ford Government has no comprehensive plan of action on accessibility, 851 days after receiving the Report of David Onley’s AODA Independent Review.
  1. The Government has not ensured that public money will never be used to create new accessibility barriers.
  1. The Ford Government has failed to enact or strengthen any accessibility standards under the AODA.

 

  1. The Ford Government has announced no new action to effectively ensure the accessibility of public transportation.

 

  1. The Ford Government imposed substantial and harmful delays in the work of Five important AODA Standards Development Committees that was underway before the Government took office.

 

  1. The Ford Government has repeatedly violated its mandatory duty under the AODA to make public the initial or final recommendations of a Government-appointed Standards Development Committee “upon receiving” those recommendations.

 

  1. The Ford Government has failed for 3 years to fulfil its mandatory duty to appoint a Standards Development Committee to review the Public Spaces Accessibility Standard.

 

  1. The Ford Government has made public no detailed plan for effective AODA enforcement.

 

  1. In a waste of public money, the Ford Government diverted 1.3 million dollars into the Rick Hansen Foundation’s controversial private accessibility certification process. This has resulted in no disability barriers being removed or prevented.

 

  1. The Ford Government unfairly burdened Ontarians with disabilities with having to fight against new safety dangers being created by municipalities allowing electric scooters.

 

  1. The Ford Government’s rhetoric has been harmfully diluting the AODA’s goal of full accessibility.

 

  1. The Ford Government has given public voice to false and troubling stereotypes About disability accessibility.

 

  1. The Ford Government has failed to effectively address the urgent needs of Ontarians with disabilities during the COVID-19 pandemic.

 

  1. The lives of vulnerable Ontarians with disabilities are endangered by the Ford Government’s secret plans for critical care triage during the COVID-19 pandemic, If hospitals cannot serve All critical care Patients.

“We keep offering the Ford Government constructive ideas, but too often, they are disregarded,” said David Lepofsky, chair of the AODA Alliance which campaigns for accessibility for people with disabilities. “Premier Ford hasn’t even met with us, and has turned down every request for a meeting.”

AODA Alliance Chair David Lepofsky has had to resort to a court application (now pending) to get the Ford Government to fulfil one of its important duties under the AODA, and a Freedom of Information application to try to force the Ford Government to release its secret plans for critical care triage if the COVID-19pandemic worsens, requiring rationing of critical care.

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

Twitter: @aodaalliance

 A Report Card on the Ford Government’s Record, After Three Years in Office, on Achieving Disability Accessibility

May 31, 2021

Prepared by the AODA Alliance

 Introduction

This year’s National AccessAbility Week takes place when Ontario’s Ford Government is completing its third year of a four year term in office. This is an especially appropriate time to take stock of how well the Ford Government is doing at advancing the goal of making Ontario accessible to people with disabilities by 2025, the deadline which the Accessibility for Ontarians with Disabilities Act enshrines in Ontario law.

It is with a strong sense of frustration that we award the Ford Government a failing “F” grade for its record on this issue.

The Ontario Public Service includes quite a number of public officials who are deeply and profoundly dedicated to the goal of tearing down barriers impeding people with disabilities, and preventing the creation of new disability barriers. They have commendably found quite a number of willing partners within the disability community (both individuals and disability organizations), and among obligated organizations in the public and private sectors. These partners are also committed to the goal of accessibility, and have in their spheres of influenced tried to move things forward. To all these people we and people with disabilities generally are indebted.

For example, several Standards Development Committees have been appointed under the AODA to craft recommendations on what enforceable AODA accessibility standards should include to be strong and effective. They have invested many hours, trying to come up with workable recommendations.

As well, over the past three years, the Ontario Government has continued to operate voluntary programs that have existed for years to contribute to the goal of accessibility. The Ford Government has also, we believe, improved things by freeing its Standards Development Committees from excessive involvement by Public Service staff. This has enabled those staff to support the work of those committees, while leaving them free to do their own work, devising recommendations for the Government.

However, all of that cannot succeed in bringing Ontario to the goal of an accessible province by 2025, without strong leadership by the Ontario Government and those who steer it. This has been the conclusion of three successive Independent Reviews, conducted under the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018.

Over the past three years, we regret that that leadership has continued to be lacking. The result is that Ontario is falling further and further behind the goal of an accessible province by 2025. Less and less time is available to correct that.

This report details several of the key ways that the Ontario Government has fallen far short of what Ontarians with disabilities need. As the Government’s mandatory annual report on its efforts on accessibility back in 2019 reveals, the Government’s prime focus has been on trying to raise awareness about accessibility. As has been the Ontario Government’s practice for years, that 2019 annual report was belatedly posted on line on the eve of the 2021 National AccessAbility Week, two years after many of the events reported in it.

Decades of experience, leading to the enactment of the AODA in 2005, has proven over and over that such awareness-raising and voluntary measures won’t get Ontario to the goal of accessibility by 2025, or indeed, ever. As always, the AODA Alliance, as a non-partisan coalition, remains ready, willing, able, and eager to work with the Government, and to offer constructive ideas on how it can change course and fulfil the AODA’s dream that the Legislature unanimously endorsed in May 2005.

1. The Ford Government Has No Comprehensive Plan of Action on Accessibility, 851 Days After Receiving the Report of David Onley’s AODA Independent Review

We have been urging the Ford Government to develop a detailed plan on accessibility since shortly after it took office, to lay out how it will get Ontario to the AODA’s mandatory goal of becoming accessible to people with disabilities by 2025. It has never done so.

In December 2018, the Ford Government said it was awaiting the final report of former Lieutenant Governor David Onley’s Independent Review of the AODA’s implementation and enforcement, before deciding what it would do regarding accessibility for people with disabilities. On January 31, 2019, the Government received the final report of the David Onley Independent Review of the AODA’s implementation and enforcement. Minister for Accessibility Raymond Cho publicly said on April 10, 2019 that David Onley did a “marvelous job.”

The Onley report found that Ontario is still full of “soul-crushing” barriers impeding people with disabilities. It concluded that progress on accessibility has taken place at a “glacial pace.” It determined that that the goal of accessibility by 2025 is nowhere in sight, and that specific new Government actions, spelled out in the report, are needed.

However, in the 851 days since receiving the Onley Report, the Ford Government has not made public a detailed plan to implement that report’s findings and recommendations. The Government has staged some media events with the Accessibility Minister to make announcements, but little if anything new was ever announced. The Government repeated pledges to lead by example on accessibility, and to take an all-of-Government approach to accessibility. But these pledges were backed by nothing new to make them mean anything more than when previous governments and ministers engaged in similar rhetorical flourishes.

2. The Government Has Not Ensured that Public Money Will Never Be Used to Create New Accessibility Barriers

In its three years in office, we have seen no effective action by the Ford Government to ensure that public money is never used to create new disability barriers or to perpetuate existing barriers. The Ontario Government spends billions of public dollars on infrastructure and on procuring goods, services and facilities, without ensuring that no new barriers are thereby created, and that no existing barriers are thereby perpetuated.

As but one example, last summer, the Ford Government announced that it would spend a half a billion dollars on the construction of new schools and on additions to existing schools. However, it announced no action to ensure that those new construction projects are fully accessible to students, teachers, school staff and parents with disabilities. The Ontario Ministry of Education has no effective standards or policies in place to ensure this accessibility, and has announced no plans to create any.

3. The Ford Government Has Enacted or Strengthened No Accessibility Standards

In its three years in power, the Ford Government has enacted no new AODA accessibility standards. It has revised no existing accessibility standards to strengthen them. It has not begun the process of developing any new accessibility standards that were not already under development when the Ford Government took office in June 2018.

As one major example, the Ford Government has not committed to develop and enact a Built Environment Accessibility Standard under the AODA, to ensure that the built environment becomes accessible to people with disabilities. No AODA Built Environment Accessibility Standard now exists. None is under development.

This failure to act is especially striking for two reasons. First, the last two AODA Independent Reviews, the 2014 Independent Review by Mayo Moran and the 2019 Independent Review by David Onley, each identified the disability barriers in the built environment as a priority. They both called for new action under the AODA. Second, when he was seeking the public’s votes in the 2018 Ontario election, Doug Ford made specific commitments regarding the disability barriers in the built environment. Doug Ford’s May 15, 2018 letter to the AODA Alliance, setting out his party’s election commitments on disability accessibility, included this:

  1. a) “Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.”
  1. b) “Whether addressing standards for public housing, health care, employment or education, our goal when passing the AODA in 2005 was to help remove the barriers that prevent people with disabilities from participating more fully in their communities.”
  1. c) “Making Ontario fully accessible by 2025 is an important goal under the AODA and it’s one that would be taken seriously by an Ontario PC government.”
  1. d) “This is why we’re disappointed the current government has not kept its promise with respect to accessibility standards. An Ontario PC government is committed to working with the AODA Alliance to address implementation and enforcement issues when it comes to these standards.

Ontario needs a clear strategy to address AODA standards and the Ontario Building Code’s accessibility provisions. We need Ontario’s design professionals, such as architects, to receive substantially improved professional training on disability and accessibility.”

4. The Ford Government Has Announced No New Action to Effectively Ensure the Accessibility of Public Transportation

Just before the 2018 Ontario election, the Ontario Government received the final recommendations for reforms to the Transportation Accessibility Standard from the AODA Transportation Standards Development committee. Since then, and over the ensuing three years in office, the Ford Government announced no action on those recommendations. It has not publicly invited any input or consultation on those recommendations. At the same time, the Ford Government has made major announcements about the future of public transit infrastructure in Ontario. As such, barriers in public transportation remained while the risk remains that new ones will continue to be created.

 5. The Ford Government Imposed Substantial and Harmful Delays in the Work of Five Important AODA Standards Development Committees that was Underway Before the Government Took Office

When the Ford Government won the 2018 Ontario election, the work of five AODA Standards Development Committees were all frozen, pending the new Minister for Accessibility getting a briefing. Any delay in the work of those committees would further slow the AODA’s sluggish implementation documented in the Onley Report.

Those Standards Development Committees remained frozen for months, long after the minister needed time to be briefed. We had to campaign for months to get that freeze lifted.

Over four months later, in November 2018, the Ford Government belatedly lifted its freeze on the work of the Employment Standards Development Committee and the Information and Communication Standards Development Committee. However it did not then also lift the freeze on the work of the three other Standards Development Committees, those working on proposals for accessibility standards in health care and education.

We had to keep up the pressure for months. The Ford Government waited until March 7, 2019 before it announced that it was lifting its freeze on the work of the Health Care Standards Development Committee and the two Education Standards Development Committees. It was as long as half a year after that announcement that those three Standards Development Committees finally got back to work.

In the meantime, the many unfair disability barriers in Ontario’s education system and Ontario’s health care system remained in place, while new ones continued to be created. The final enactment of new accessibility standards in the areas of health care and education was delayed commensurately, as was the enactment of revisions to strengthen Ontario’s 2011 Information and Communication Accessibility Standard and Ontario’s 2011 Employment Accessibility Standard.

6. The Ford Government Has Repeatedly Violated Its Mandatory Duty Under the AODA to Make Public the Initial or Final Recommendations of a Government-Appointed Standards Development Committee “Upon Receiving” Those Recommendations

Section 10(1) of the AODA requires the Government to make public the initial or final recommendations that it receives from a Standards Development Committee, appointed under the AODA “upon receiving” those recommendations. The Ontario Government under successive governments and ministers has wrongly taken the approach that it can delay making those recommendations public for months despite the AODA‘s clear, mandatory and unambiguous language.

The Ford Government has certainly taken this troubling approach. It delayed some two years before making public the final recommendations of the Employment Standards Development Committee earlier this year. It delayed some six months before making public the final recommendations of the Information and Communication Standards Development Committee last year. It delayed over five months before making public the initial recommendations of the Health Care Standards Development Committee earlier this month. It has delayed over two months so far in making public the initial recommendations of the K-12 Education Standards Development Committee and Post-Secondary Education Standards Development Committee.

As a result, AODA Alliance Chair David Lepofsky has brought a court application, now pending, to seek an order compelling the Ford Government to obey the AODA. This is especially disturbing, because the Government is leading by such a poor example when it comes to the AODA. Its delay in complying with s. 10 of the AODA slows the already-slow process of developing and enacting or revising accessibility standards under the AODA.

7. The Ford Government Has for 3 Years Failed to Fulfil Its Mandatory Duty to Appoint A Standards Development Committee to Review the Public Spaces Accessibility Standard

The AODA required the Ontario Government to appoint a Standards Development Committee to review the Public Spaces Accessibility Standard by the end of 2017. Neither the previous Wynne Government nor the current Ford Government have fulfilled this legal duty. This is a mandatory AODA requirement.

The Ford Government has had three years in office to learn about this duty and to fulfil it. We flagged it for the Government very soon after it took office in 2018.

8. The Ford Government Has Made Public No Detailed Plan for Effective AODA Enforcement

During its three years in office, the Ford Government has announced no public plan to substantially strengthen the AODA’s weak enforcement. Three years ago, the Ford Government inherited the previous McGuinty Government’s and Wynne Government’s multi-year failure to effectively and vigourously enforce the AODA. What little enforcement that took place fell far short of what people with disabilities needed, as is confirmed in both the 2015 Moran Report and the 2019 Onley Report. The failure to effectively enforce the AODA has contributed to Ontario falling so far behind the goal of becoming accessible to people with disabilities by 2025.

 

9. In a Waste of Public Money, the Ford Government Diverted 1.3 Million Dollars into the Rick Hansen Foundation’s Controversial Private Accessibility Certification Process

The only significant new action that the Ford Government has announced on accessibility over its first three years in office was its announcement over two years ago in the April 11, 2019 Ontario Budget that it would spend 1.3 million public dollars over two years to have the Rick Hansen Foundation’s private accessibility certification process “certify” some 250 buildings, belonging to business or the public sector, for accessibility. In two years, this has not been shown to lead to the removal or prevention of a single barrier against people with disabilities anywhere in the built environment. It has predictably been a waste of public money.

The Ford Government did not consult the AODA Alliance or, to our knowledge, the disability community, before embarking on this wasteful project. It ignored serious concerns with spending public money on such a private accessibility certification process. These concerns have been public for well over five years. The Ford Government gave no public reasons for rejecting these concerns.

A private accessibility certification risks misleading the public, including people with disabilities. It also risks misleading the organization that seeks this so-called certification. It “certifies” nothing.

A private organization might certify a building as accessible, and yet people with disabilities may well find that the building itself, or the services offered in the building, still have serious accessibility problems. Such a certification provides no defence to an accessibility complaint or proceeding under the AODA, under the Ontario Building Code, under a municipal bylaw, under the Ontario Human Rights Code, or under the Canadian Charter of Rights and Freedoms.

If an organization gets a good -level accessibility certification, it may think they have done all they need to do on accessibility. The public, including people with disabilities, and design professionals may be misled to think that this is a model of accessibility to be emulated, and that it is a place that will be easy to fully access. This can turn out not to be the case, especially if the assessor uses the Rick Hansen Foundation’s insufficient standard to assess accessibility, and/or if it does not do an accurate job of assessing the building and/or if the assessor’s only training is the inadequate short training that the Rick Hansen Foundation created.

For example, the Ford Government got the Rick Hansen Foundation to certify as accessible the huge New Toronto Courthouse now under construction. Yet we have shown that its plans are replete with serious accessibility problems. The Rick Hansen Foundation’s assessor never contacted the AODA Alliance to find out about our serious concerns with the courthouse’s design before giving it a rating of “accessible.”

The Rick Hansen Foundation’s private accessibility certification process lacks much-needed public accountability. The public has no way to know if the private accessibility assessor is making accurate assessments. It is not subject to Freedom of Information laws. It operates behind closed doors. It lacks the kind of public accountability that applies to a government audit or inspection or other enforcement. For more details on the problems with private accessibility certification processes, read the AODA Alliance’s February 1, 2016 brief on the problems with publicly funding any private accessibility certification process.

10. The Ford Government Unfairly Burdened Ontarians with Disabilities with Having to Fight Against New Barriers Being Created by Municipalities Allowing Electric Scooters

It is bad enough that the Ford Government did too little in its first three years in office to tear down the many existing barriers that impede people with disabilities. It is even worse that the Government took action that will create new disability barriers, and against which people with disabilities must organize to battle at the municipal level.

When the Ford Government took office in June 2018, it was illegal to ride electric scooters (e-scooters) in public places. In January 2019, over the strenuous objection of Ontario’s disability community, the Ford Government passed a new regulation. It lets each municipality permit the use of e-scooters in public places, if they wish. It did not require municipalities to protect people with disabilities from the dangers that e-scooters pose to them.

Silent, high-speed e-scooters racing towards pedestrians at over 20 KPH, ridden by an unlicensed, untrained, uninsured joy-riders, endanger people with disabilities, seniors, children and others. Leaving e-scooters strewn all over in public places, as happens in other cities that permit them, creates physical barriers to people using wheelchairs and walkers. They create tripping hazards for people with vision loss.

Torontonians with disabilities had to mount a major campaign to convince Toronto City Council to reject the idea of allowing e-scooters. They were up against a feeding-frenzy of well-funded and well-connected corporate lobbyists, the lobbyists who clearly hold sway with the Ontario Premier’s office.

Unlike Toronto, Ottawa and Windsor have allowed e-scooters, disregarding the danger they now pose for people with disabilities. Some other Ontario cities are considering allowing them.

Thanks to the Ford Government, people with disabilities must now campaign against e-scooters, city by city. This is a huge, unfair burden that people with disabilities did not need, especially during the COVID-19 pandemic. It is a cruel irony that the Ford Government unleashed the danger of personal injuries by e-scooters at the same time as it has said it wants to reduce the number of concussions in Ontario.

11. The Ford Government’s Rhetoric Has Been Harmfully Diluting the AODA’s Goal of Full Accessibility

A core feature of the AODA is that it requires Ontario become “accessible” to people with disabilities by 2025. It does not merely say that Ontario should become “more accessible” by that deadline.

Yet, the Ford Government too often only talks about making Ontario more accessible. In fairness, the previous Ontario Liberal Government under Premier Dalton McGuinty and later Premier Kathleen Wynne too often did the same.

This dilutes the goal of the AODA, for which people with disabilities fought so hard for a decade. It hurts people with disabilities. It is no doubt used to try to lower expectations and over-inflate any accomplishments.

 

12. The Ford Government Has Given Public Voice to False Troubling Stereotypes About Disability Accessibility

 

Two years ago, the Ford Government publicly voiced very troubling and harmful stereotypes about the AODA and disability accessibility during National AccessAbility Week.

In 2019, during National AccessAbility Week, NDP MPP Joel Harden proposed a that the Legislature pass a resolution that called for the Government to bring forward a plan in response to the Onley Report. The resolution was worded in benign and non-partisan words, which in key ways tracked Doug Ford’s May 15, 2018 letter to the AODA Alliance. The proposed resolution stated:

“That, in the opinion of this House, the Government of Ontario should release a plan of action on accessibility in response to David Onley’s review of the Accessibility for Ontarians with Disabilities Act that includes, but is not limited to, a commitment to implement new standards for the built environment, stronger enforcement of the Act, accessibility training for design professionals, and an assurance that public money is never again used to create new accessibility barriers.”

Premier Ford had every good reason to support this proposed resolution, as we explained in the June 10, 2019 AODA Alliance Update. Yet, as described in detail in the June 11, 2019 AODA Alliance Update, the Doug Ford Government used its majority in the Legislature to defeat this resolution on May 30, 2019, right in the middle of National Access Abilities Week.

The speeches by Conservative MPPs in the Legislature on the Government’s behalf, in opposition to that motion, voiced false and harmful stereotypes about disability accessibility. Those statements in effect called into serious question the Ford Government’s commitment to the effective implementation and enforcement of the AODA. They denigrated the creation and enforcement of AODA accessibility standards as red tape that threatened to imperil businesses and hurt people with disabilities.

13. The Ford Government Has Failed to Effectively Address the Urgent Needs of Ontarians with Disabilities During the COVID-19 Pandemic

All of the foregoing would be enough in ordinary times to merit the “F” grade which the Ford Government is here awarded. However, its treatment of people with disabilities and their accessibility needs during the COVID-19 pandemic makes that grade all the more deserved.

In the earliest weeks, the Government deserved a great deal of leeway for responding to the pandemic, because it was understandably caught off guard, as was the world, by the enormity of this nightmare. However, even well after the initial shock period when the pandemic hit and for the year or more since then, the Ford Government has systemically failed to effectively address the distinctive and heightened urgent needs of people with disabilities in the pandemic.

People with disabilities were foreseeably exposed to disproportionately contract COVID-19, to suffer its worst hardships and to die from it. Yet too often the Government took a failed “one size fits all” approach to its emergency planning, that failed to address the urgent needs of people with disabilities. This issue has preoccupied the work of the AODA Alliance and many other disability organizations over the past 14 months.

Two of the areas where the Government most obviously failed were in health care and education. This is especially inexcusable since the Government had the benefit of a Health Care Standards Development Committee, a K-12 Education Standards Development Committee and a Post-Secondary Education Standards Development Committee to give the Government ideas and advice throughout the pandemic. The K-12 Education Standards Development Committee delivered a detailed package of recommendations for the pandemic response four months into the pandemic. Yet those recommendations have largely if not totally gone unimplemented.

The Government repeatedly left it to each school board, college, university, and health care provider to each separately figure out what disability barriers had arisen during the pandemic, and how to remove and prevent those barriers. This is a predictable formula for wasteful duplication of effort, for increased costs and workloads, all in the middle of a pandemic.

For example, the Ford Government largely left it to each frontline teacher and principal to figure out how to accommodate the recurring needs of students with different disabilities during distance learning. The Government relied on TVO as a major partner in delivering distance learning to school students, even though TVO’s distance learning offerings have accessibility barriers that are unforgivable at any time, and especially during a pandemic.

As another example, the Ford Government did not properly plan to ensure that the process for booking and arranging a COVID-19 vaccine was disability-accessible. There is no specific accessible booking hotline to help people with disabilities navigate the booking process from beginning to end.

There is no assurance that drug stores or others through whom vaccines can be booked have accessible websites. We have received complaints that the Government’s own online booking portal has accessibility problems. Arranging for a barrier-free vaccination for People with Disabilities is even harder than the public is finding for just booking a vaccination for those with no disabilities.

14. The Lives of Vulnerable People with Disabilities are Endangered by the Ford Government’s Secret Plans for Critical Care Triage During the COVID-19 Pandemic, If Hospitals Cannot Serve All Critical Care Patients

The AODA Alliance, working together with other disability organizations, has also had to devote a great deal of effort to try to combat the danger that vulnerable people with disabilities would face disability discrimination in access to life-saving critical care if the pandemic overloads hospitals, leading to critical care triage. The Ford Government has created new disability barriers by allowing clear disability discrimination to be entrenched in Ontario’s critical care triage protocol. Even though formal critical care triage has not yet been directed, there is a real danger that it has occurred on the front lines without proper public accountability e.g. by ambulance crews declining to offer critical care to some patients at roadside, when called via 911.

The Ford Government has allowed a concerted disinformation campaign to be led by those who designed the Ontario critical care triage protocol, and who are falsely claiming that there is no disability discrimination in that protocol.

Further Background

Further background on all of the issues addressed in this report card can be found on the AODA Alliance’s web site. It has separate pages, linked to its home page, addressing such topics as accessibility issues in transportation, health care, education, information and communication, the built environment, AODA enforcement, and disability issues arising during the COVID-19 pandemic, among others. Follow @aodaalliance



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In a Detailed Report Card Delivered During National AccessAbility Week, the Ford Government Gets a Blistering “F” Grade for Its Three Year Record Since Taking Office on Action to Make Ontario Accessible for 2.6 Million Ontarians with Disabilities


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

May 31, 2021 Toronto: During National AccessAbility Week, the non-partisan grassroots AODA Alliance releases a report card (set out below) on the Ford Government’s record for tearing down the barriers that people with disabilities face, awarding the Government an “F” grade.

When he was campaigning for votes in the 2018 election, Doug Ford said that our issues “are close to the hearts of our Ontario PC Caucus” and that:

“Too many Ontarians with disabilities still face barriers when they try to get a job, ride public transit, get an education, use our healthcare system, buy goods or services, or eat in restaurants.”

Yet three years after taking office, people with disabilities are no better off, and in some important ways, are worse off, according to today’s new report card. Passed unanimously in 2005, the Accessibility for Ontarians with Disabilities Act requires the Ontario Government to lead this province to become accessible to people with disabilities by 2025. Ontario is nowhere near that goal with under four years left. The Ford Government has no effective plan to meet that deadline. This report card’s key findings include:

1. The Ford Government has no comprehensive plan of action on accessibility, 851 days after receiving the Report of David Onley’s AODA Independent Review.

2. The Government has not ensured that public money will never be used to create new accessibility barriers.

3. The Ford Government has failed to enact or strengthen any accessibility standards under the AODA.

4. The Ford Government has announced no new action to effectively ensure the accessibility of public transportation.

5. The Ford Government imposed substantial and harmful delays in the work of Five important AODA Standards Development Committees that was underway before the Government took office.

6. The Ford Government has repeatedly violated its mandatory duty under the AODA to make public the initial or final recommendations of a Government-appointed Standards Development Committee “upon receiving” those recommendations.

7. The Ford Government has failed for 3 years to fulfil its mandatory duty to appoint a Standards Development Committee to review the Public Spaces Accessibility Standard.

8. The Ford Government has made public no detailed plan for effective AODA enforcement.

9. In a waste of public money, the Ford Government diverted 1.3 million dollars into the Rick Hansen Foundation’s controversial private accessibility certification process. This has resulted in no disability barriers being removed or prevented.

10. The Ford Government unfairly burdened Ontarians with disabilities with having to fight against new safety dangers being created by municipalities allowing electric scooters.

11. The Ford Government’s rhetoric has been harmfully diluting the AODA’s goal of full accessibility.

12. The Ford Government has given public voice to false and troubling stereotypes About disability accessibility.

13. The Ford Government has failed to effectively address the urgent needs of Ontarians with disabilities during the COVID-19 pandemic.

14. The lives of vulnerable Ontarians with disabilities are endangered by the Ford Government’s secret plans for critical care triage during the COVID-19 pandemic, If hospitals cannot serve All critical care Patients.

“We keep offering the Ford Government constructive ideas, but too often, they are disregarded,” said David Lepofsky, chair of the AODA Alliance which campaigns for accessibility for people with disabilities. “Premier Ford hasn’t even met with us, and has turned down every request for a meeting.”

AODA Alliance Chair David Lepofsky has had to resort to a court application (now pending) to get the Ford Government to fulfil one of its important duties under the AODA, and a Freedom of Information application to try to force the Ford Government to release its secret plans for critical care triage if the COVID-19pandemic worsens, requiring rationing of critical care.

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

A Report Card on the Ford Government’s Record, After Three Years in Office, on Achieving Disability Accessibility

May 31, 2021

Prepared by the AODA Alliance

Introduction

This year’s National AccessAbility Week takes place when Ontario’s Ford Government is completing its third year of a four year term in office. This is an especially appropriate time to take stock of how well the Ford Government is doing at advancing the goal of making Ontario accessible to people with disabilities by 2025, the deadline which the Accessibility for Ontarians with Disabilities Act enshrines in Ontario law.

It is with a strong sense of frustration that we award the Ford Government a failing “F” grade for its record on this issue.

The Ontario Public Service includes quite a number of public officials who are deeply and profoundly dedicated to the goal of tearing down barriers impeding people with disabilities, and preventing the creation of new disability barriers. They have commendably found quite a number of willing partners within the disability community (both individuals and disability organizations), and among obligated organizations in the public and private sectors. These partners are also committed to the goal of accessibility, and have in their spheres of influenced tried to move things forward. To all these people we and people with disabilities generally are indebted.

For example, several Standards Development Committees have been appointed under the AODA to craft recommendations on what enforceable AODA accessibility standards should include to be strong and effective. They have invested many hours, trying to come up with workable recommendations.

As well, over the past three years, the Ontario Government has continued to operate voluntary programs that have existed for years to contribute to the goal of accessibility. The Ford Government has also, we believe, improved things by freeing its Standards Development Committees from excessive involvement by Public Service staff. This has enabled those staff to support the work of those committees, while leaving them free to do their own work, devising recommendations for the Government.

However, all of that cannot succeed in bringing Ontario to the goal of an accessible province by 2025, without strong leadership by the Ontario Government and those who steer it. This has been the conclusion of three successive Independent Reviews, conducted under the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018.

Over the past three years, we regret that that leadership has continued to be lacking. The result is that Ontario is falling further and further behind the goal of an accessible province by 2025. Less and less time is available to correct that.

This report details several of the key ways that the Ontario Government has fallen far short of what Ontarians with disabilities need. As the Government’s mandatory annual report on its efforts on accessibility back in 2019 reveals, the Government’s prime focus has been on trying to raise awareness about accessibility. As has been the Ontario Government’s practice for years, that 2019 annual report was belatedly posted on line on the eve of the 2021 National AccessAbility Week, two years after many of the events reported in it.

Decades of experience, leading to the enactment of the AODA in 2005, has proven over and over that such awareness-raising and voluntary measures won’t get Ontario to the goal of accessibility by 2025, or indeed, ever. As always, the AODA Alliance, as a non-partisan coalition, remains ready, willing, able, and eager to work with the Government, and to offer constructive ideas on how it can change course and fulfil the AODA’s dream that the Legislature unanimously endorsed in May 2005.

1. The Ford Government Has No Comprehensive Plan of Action on Accessibility, 851 Days After Receiving the Report of David Onley’s AODA Independent Review

We have been urging the Ford Government to develop a detailed plan on accessibility since shortly after it took office, to lay out how it will get Ontario to the AODA’s mandatory goal of becoming accessible to people with disabilities by 2025. It has never done so.

In December 2018, the Ford Government said it was awaiting the final report of former Lieutenant Governor David Onley’s Independent Review of the AODA’s implementation and enforcement, before deciding what it would do regarding accessibility for people with disabilities. On January 31, 2019, the Government received the final report of the David Onley Independent Review of the AODA’s implementation and enforcement. Minister for Accessibility Raymond Cho publicly said on April 10, 2019 that David Onley did a “marvelous job.”

The Onley report found that Ontario is still full of “soul-crushing” barriers impeding people with disabilities. It concluded that progress on accessibility has taken place at a “glacial pace.” It determined that that the goal of accessibility by 2025 is nowhere in sight, and that specific new Government actions, spelled out in the report, are needed.

However, in the 851 days since receiving the Onley Report, the Ford Government has not made public a detailed plan to implement that report’s findings and recommendations. The Government has staged some media events with the Accessibility Minister to make announcements, but little if anything new was ever announced. The Government repeated pledges to lead by example on accessibility, and to take an all-of-Government approach to accessibility. But these pledges were backed by nothing new to make them mean anything more than when previous governments and ministers engaged in similar rhetorical flourishes.

2. The Government Has Not Ensured that Public Money Will Never Be Used to Create New Accessibility Barriers

In its three years in office, we have seen no effective action by the Ford Government to ensure that public money is never used to create new disability barriers or to perpetuate existing barriers. The Ontario Government spends billions of public dollars on infrastructure and on procuring goods, services and facilities, without ensuring that no new barriers are thereby created, and that no existing barriers are thereby perpetuated.

As but one example, last summer, the Ford Government announced that it would spend a half a billion dollars on the construction of new schools and on additions to existing schools. However, it announced no action to ensure that those new construction projects are fully accessible to students, teachers, school staff and parents with disabilities. The Ontario Ministry of Education has no effective standards or policies in place to ensure this accessibility, and has announced no plans to create any.

3. The Ford Government Has Enacted or Strengthened No Accessibility Standards

In its three years in power, the Ford Government has enacted no new AODA accessibility standards. It has revised no existing accessibility standards to strengthen them. It has not begun the process of developing any new accessibility standards that were not already under development when the Ford Government took office in June 2018.

As one major example, the Ford Government has not committed to develop and enact a Built Environment Accessibility Standard under the AODA, to ensure that the built environment becomes accessible to people with disabilities. No AODA Built Environment Accessibility Standard now exists. None is under development.

This failure to act is especially striking for two reasons. First, the last two AODA Independent Reviews, the 2014 Independent Review by Mayo Moran and the 2019 Independent Review by David Onley, each identified the disability barriers in the built environment as a priority. They both called for new action under the AODA. Second, when he was seeking the public’s votes in the 2018 Ontario election, Doug Ford made specific commitments regarding the disability barriers in the built environment. Doug Ford’s May 15, 2018 letter to the AODA Alliance, setting out his party’s election commitments on disability accessibility, included this:

a) “Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.”

b) “Whether addressing standards for public housing, health care, employment or education, our goal when passing the AODA in 2005 was to help remove the barriers that prevent people with disabilities from participating more fully in their communities.”

c) “Making Ontario fully accessible by 2025 is an important goal under the AODA and it’s one that would be taken seriously by an Ontario PC government.”

d) “This is why we’re disappointed the current government has not kept its promise with respect to accessibility standards. An Ontario PC government is committed to working with the AODA Alliance to address implementation and enforcement issues when it comes to these standards.

Ontario needs a clear strategy to address AODA standards and the Ontario Building Code’s accessibility provisions. We need Ontario’s design professionals, such as architects, to receive substantially improved professional training on disability and accessibility.”

4. The Ford Government Has Announced No New Action to Effectively Ensure the Accessibility of Public Transportation

Just before the 2018 Ontario election, the Ontario Government received the final recommendations for reforms to the Transportation Accessibility Standard from the AODA Transportation Standards Development committee. Since then, and over the ensuing three years in office, the Ford Government announced no action on those recommendations. It has not publicly invited any input or consultation on those recommendations. At the same time, the Ford Government has made major announcements about the future of public transit infrastructure in Ontario. As such, barriers in public transportation remained while the risk remains that new ones will continue to be created.

5. The Ford Government Imposed Substantial and Harmful Delays in the Work of Five Important AODA Standards Development Committees that was Underway Before the Government Took Office

When the Ford Government won the 2018 Ontario election, the work of five AODA Standards Development Committees were all frozen, pending the new Minister for Accessibility getting a briefing. Any delay in the work of those committees would further slow the AODA’s sluggish implementation documented in the Onley Report.

Those Standards Development Committees remained frozen for months, long after the minister needed time to be briefed. We had to campaign for months to get that freeze lifted.

Over four months later, in November 2018, the Ford Government belatedly lifted its freeze on the work of the Employment Standards Development Committee and the Information and Communication Standards Development Committee. However it did not then also lift the freeze on the work of the three other Standards Development Committees, those working on proposals for accessibility standards in health care and education.

We had to keep up the pressure for months. The Ford Government waited until March 7, 2019 before it announced that it was lifting its freeze on the work of the Health Care Standards Development Committee and the two Education Standards Development Committees. It was as long as half a year after that announcement that those three Standards Development Committees finally got back to work.

In the meantime, the many unfair disability barriers in Ontario’s education system and Ontario’s health care system remained in place, while new ones continued to be created. The final enactment of new accessibility standards in the areas of health care and education was delayed commensurately, as was the enactment of revisions to strengthen Ontario’s 2011 Information and Communication Accessibility Standard and Ontario’s 2011 Employment Accessibility Standard.

6. The Ford Government Has Repeatedly Violated Its Mandatory Duty Under the AODA to Make Public the Initial or Final Recommendations of a Government-Appointed Standards Development Committee “Upon Receiving” Those Recommendations

Section 10(1) of the AODA requires the Government to make public the initial or final recommendations that it receives from a Standards Development Committee, appointed under the AODA “upon receiving” those recommendations. The Ontario Government under successive governments and ministers has wrongly taken the approach that it can delay making those recommendations public for months despite the AODA’s clear, mandatory and unambiguous language.

The Ford Government has certainly taken this troubling approach. It delayed some two years before making public the final recommendations of the Employment Standards Development Committee earlier this year. It delayed some six months before making public the final recommendations of the Information and Communication Standards Development Committee last year. It delayed over five months before making public the initial recommendations of the Health Care Standards Development Committee earlier this month. It has delayed over two months so far in making public the initial recommendations of the K-12 Education Standards Development Committee and Post-Secondary Education Standards Development Committee.

As a result, AODA Alliance Chair David Lepofsky has brought a court application, now pending, to seek an order compelling the Ford Government to obey the AODA. This is especially disturbing, because the Government is leading by such a poor example when it comes to the AODA. Its delay in complying with s. 10 of the AODA slows the already-slow process of developing and enacting or revising accessibility standards under the AODA.

7. The Ford Government Has for 3 Years Failed to Fulfil Its Mandatory Duty to Appoint A Standards Development Committee to Review the Public Spaces Accessibility Standard

The AODA required the Ontario Government to appoint a Standards Development Committee to review the Public Spaces Accessibility Standard by the end of 2017. Neither the previous Wynne Government nor the current Ford Government have fulfilled this legal duty. This is a mandatory AODA requirement.

The Ford Government has had three years in office to learn about this duty and to fulfil it. We flagged it for the Government very soon after it took office in 2018.

8. The Ford Government Has Made Public No Detailed Plan for Effective AODA Enforcement

During its three years in office, the Ford Government has announced no public plan to substantially strengthen the AODA’s weak enforcement. Three years ago, the Ford Government inherited the previous McGuinty Government’s and Wynne Government’s multi-year failure to effectively and vigourously enforce the AODA. What little enforcement that took place fell far short of what people with disabilities needed, as is confirmed in both the 2015 Moran Report and the 2019 Onley Report. The failure to effectively enforce the AODA has contributed to Ontario falling so far behind the goal of becoming accessible to people with disabilities by 2025.

9. In a Waste of Public Money, the Ford Government Diverted 1.3 Million Dollars into the Rick Hansen Foundation’s Controversial Private Accessibility Certification Process

The only significant new action that the Ford Government has announced on accessibility over its first three years in office was its announcement over two years ago in the April 11, 2019 Ontario Budget that it would spend 1.3 million public dollars over two years to have the Rick Hansen Foundation’s private accessibility certification process “certify” some 250 buildings, belonging to business or the public sector, for accessibility. In two years, this has not been shown to lead to the removal or prevention of a single barrier against people with disabilities anywhere in the built environment. It has predictably been a waste of public money.

The Ford Government did not consult the AODA Alliance or, to our knowledge, the disability community, before embarking on this wasteful project. It ignored serious concerns with spending public money on such a private accessibility certification process. These concerns have been public for well over five years. The Ford Government gave no public reasons for rejecting these concerns.

A private accessibility certification risks misleading the public, including people with disabilities. It also risks misleading the organization that seeks this so-called certification. It “certifies” nothing.

A private organization might certify a building as accessible, and yet people with disabilities may well find that the building itself, or the services offered in the building, still have serious accessibility problems. Such a certification provides no defence to an accessibility complaint or proceeding under the AODA, under the Ontario Building Code, under a municipal bylaw, under the Ontario Human Rights Code, or under the Canadian Charter of Rights and Freedoms.

If an organization gets a good -level accessibility certification, it may think they have done all they need to do on accessibility. The public, including people with disabilities, and design professionals may be misled to think that this is a model of accessibility to be emulated, and that it is a place that will be easy to fully access. This can turn out not to be the case, especially if the assessor uses the Rick Hansen Foundation’s insufficient standard to assess accessibility, and/or if it does not do an accurate job of assessing the building and/or if the assessor’s only training is the inadequate short training that the Rick Hansen Foundation created.

For example, the Ford Government got the Rick Hansen Foundation to certify as accessible the huge New Toronto Courthouse now under construction. Yet we have shown that its plans are replete with serious accessibility problems. The Rick Hansen Foundation’s assessor never contacted the AODA Alliance to find out about our serious concerns with the courthouse’s design before giving it a rating of “accessible.”

The Rick Hansen Foundation’s private accessibility certification process lacks much-needed public accountability. The public has no way to know if the private accessibility assessor is making accurate assessments. It is not subject to Freedom of Information laws. It operates behind closed doors. It lacks the kind of public accountability that applies to a government audit or inspection or other enforcement. For more details on the problems with private accessibility certification processes, read the AODA Alliance’s February 1, 2016 brief on the problems with publicly funding any private accessibility certification process.

10. The Ford Government Unfairly Burdened Ontarians with Disabilities with Having to Fight Against New Barriers Being Created by Municipalities Allowing Electric Scooters

It is bad enough that the Ford Government did too little in its first three years in office to tear down the many existing barriers that impede people with disabilities. It is even worse that the Government took action that will create new disability barriers, and against which people with disabilities must organize to battle at the municipal level.

When the Ford Government took office in June 2018, it was illegal to ride electric scooters (e-scooters) in public places. In January 2019, over the strenuous objection of Ontario’s disability community, the Ford Government passed a new regulation. It lets each municipality permit the use of e-scooters in public places, if they wish. It did not require municipalities to protect people with disabilities from the dangers that e-scooters pose to them.

Silent, high-speed e-scooters racing towards pedestrians at over 20 KPH, ridden by an unlicensed, untrained, uninsured joy-riders, endanger people with disabilities, seniors, children and others. Leaving e-scooters strewn all over in public places, as happens in other cities that permit them, creates physical barriers to people using wheelchairs and walkers. They create tripping hazards for people with vision loss.

Torontonians with disabilities had to mount a major campaign to convince Toronto City Council to reject the idea of allowing e-scooters. They were up against a feeding-frenzy of well-funded and well-connected corporate lobbyists, the lobbyists who clearly hold sway with the Ontario Premier’s office.

Unlike Toronto, Ottawa and Windsor have allowed e-scooters, disregarding the danger they now pose for people with disabilities. Some other Ontario cities are considering allowing them.

Thanks to the Ford Government, people with disabilities must now campaign against e-scooters, city by city. This is a huge, unfair burden that people with disabilities did not need, especially during the COVID-19 pandemic. It is a cruel irony that the Ford Government unleashed the danger of personal injuries by e-scooters at the same time as it has said it wants to reduce the number of concussions in Ontario.

11. The Ford Government’s Rhetoric Has Been Harmfully Diluting the AODA’s Goal of Full Accessibility

A core feature of the AODA is that it requires Ontario become “accessible” to people with disabilities by 2025. It does not merely say that Ontario should become “more accessible” by that deadline.

Yet, the Ford Government too often only talks about making Ontario more accessible. In fairness, the previous Ontario Liberal Government under Premier Dalton McGuinty and later Premier Kathleen Wynne too often did the same.

This dilutes the goal of the AODA, for which people with disabilities fought so hard for a decade. It hurts people with disabilities. It is no doubt used to try to lower expectations and over-inflate any accomplishments.

12. The Ford Government Has Given Public Voice to False Troubling Stereotypes About Disability Accessibility

Two years ago, the Ford Government publicly voiced very troubling and harmful stereotypes about the AODA and disability accessibility during National AccessAbility Week.
In 2019, during National AccessAbility Week, NDP MPP Joel Harden proposed a that the Legislature pass a resolution that called for the Government to bring forward a plan in response to the Onley Report. The resolution was worded in benign and non-partisan words, which in key ways tracked Doug Ford’s May 15, 2018 letter to the AODA Alliance. The proposed resolution stated:

“That, in the opinion of this House, the Government of Ontario should release a plan of action on accessibility in response to David Onley’s review of the Accessibility for Ontarians with Disabilities Act that includes, but is not limited to, a commitment to implement new standards for the built environment, stronger enforcement of the Act, accessibility training for design professionals, and an assurance that public money is never again used to create new accessibility barriers.”

Premier Ford had every good reason to support this proposed resolution, as we explained in the June 10, 2019 AODA Alliance Update. Yet, as described in detail in the June 11, 2019 AODA Alliance Update, the Doug Ford Government used its majority in the Legislature to defeat this resolution on May 30, 2019, right in the middle of National Access Abilities Week.

The speeches by Conservative MPPs in the Legislature on the Government’s behalf, in opposition to that motion, voiced false and harmful stereotypes about disability accessibility. Those statements in effect called into serious question the Ford Government’s commitment to the effective implementation and enforcement of the AODA. They denigrated the creation and enforcement of AODA accessibility standards as red tape that threatened to imperil businesses and hurt people with disabilities.

13. The Ford Government Has Failed to Effectively Address the Urgent Needs of Ontarians with Disabilities During the COVID-19 Pandemic

All of the foregoing would be enough in ordinary times to merit the “F” grade which the Ford Government is here awarded. However, its treatment of people with disabilities and their accessibility needs during the COVID-19 pandemic makes that grade all the more deserved.

In the earliest weeks, the Government deserved a great deal of leeway for responding to the pandemic, because it was understandably caught off guard, as was the world, by the enormity of this nightmare. However, even well after the initial shock period when the pandemic hit and for the year or more since then, the Ford Government has systemically failed to effectively address the distinctive and heightened urgent needs of people with disabilities in the pandemic.

People with disabilities were foreseeably exposed to disproportionately contract COVID-19, to suffer its worst hardships and to die from it. Yet too often the Government took a failed “one size fits all” approach to its emergency planning, that failed to address the urgent needs of people with disabilities. This issue has preoccupied the work of the AODA Alliance and many other disability organizations over the past 14 months.

Two of the areas where the Government most obviously failed were in health care and education. This is especially inexcusable since the Government had the benefit of a Health Care Standards Development Committee, a K-12 Education Standards Development Committee and a Post-Secondary Education Standards Development Committee to give the Government ideas and advice throughout the pandemic. The K-12 Education Standards Development Committee delivered a detailed package of recommendations for the pandemic response four months into the pandemic. Yet those recommendations have largely if not totally gone unimplemented.

The Government repeatedly left it to each school board, college, university, and health care provider to each separately figure out what disability barriers had arisen during the pandemic, and how to remove and prevent those barriers. This is a predictable formula for wasteful duplication of effort, for increased costs and workloads, all in the middle of a pandemic.

For example, the Ford Government largely left it to each frontline teacher and principal to figure out how to accommodate the recurring needs of students with different disabilities during distance learning. The Government relied on TVO as a major partner in delivering distance learning to school students, even though TVO’s distance learning offerings have accessibility barriers that are unforgivable at any time, and especially during a pandemic.

As another example, the Ford Government did not properly plan to ensure that the process for booking and arranging a COVID-19 vaccine was disability-accessible. There is no specific accessible booking hotline to help people with disabilities navigate the booking process from beginning to end.

There is no assurance that drug stores or others through whom vaccines can be booked have accessible websites. We have received complaints that the Government’s own online booking portal has accessibility problems. Arranging for a barrier-free vaccination for People with Disabilities is even harder than the public is finding for just booking a vaccination for those with no disabilities.

14. The Lives of Vulnerable People with Disabilities are Endangered by the Ford Government’s Secret Plans for Critical Care Triage During the COVID-19 Pandemic, If Hospitals Cannot Serve All Critical Care Patients

The AODA Alliance, working together with other disability organizations, has also had to devote a great deal of effort to try to combat the danger that vulnerable people with disabilities would face disability discrimination in access to life-saving critical care if the pandemic overloads hospitals, leading to critical care triage. The Ford Government has created new disability barriers by allowing clear disability discrimination to be entrenched in Ontario’s critical care triage protocol. Even though formal critical care triage has not yet been directed, there is a real danger that it has occurred on the front lines without proper public accountability e.g. by ambulance crews declining to offer critical care to some patients at roadside, when called via 911.

The Ford Government has allowed a concerted disinformation campaign to be led by those who designed the Ontario critical care triage protocol, and who are falsely claiming that there is no disability discrimination in that protocol.

Further Background

Further background on all of the issues addressed in this report card can be found on the AODA Alliance’s web site. It has separate pages, linked to its home page, addressing such topics as accessibility issues in transportation, health care, education, information and communication, the built environment, AODA enforcement, and disability issues arising during the COVID-19 pandemic, among others. Follow @aodaalliance




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National AccessAbility Week



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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

April 20, 2021

            SUMMARY

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

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

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

(Note: Full quotation later in this Update)

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

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

 1. The Latest Media Coverage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bogus Defence #1

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

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

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

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

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

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

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

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

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

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

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

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

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

Bogus Defence #2

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

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

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

Bogus Defence #3

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

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

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

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

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

Bogus Defence #4

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

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

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

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

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

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

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

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

            MORE DETAILS

 CBC News Online April 19, 2021

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

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

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

Zach Dubinsky, Terence McKenna, Joseph Loiero, Albert Leung

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

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

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

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

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

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

He hopes the protocol won’t be needed.

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

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

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

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

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

Level 1 triage could come in weeks

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

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

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

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

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

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

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

Withdrawal of care would need government approval

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

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

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

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

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

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

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

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

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

Protocol violates human rights, groups allege

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

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

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

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

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

Pandemic made ‘exponentially scarier’

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

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

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

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

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

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

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

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

‘Absolutely not … based on disability’

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

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

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

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

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

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

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

 The National Post April 14, 2021

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

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

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

Author of the article: Sharon Kirkey

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

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

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

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

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

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

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

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

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

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

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

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

MORE ON THIS TOPIC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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


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

April 20, 2021

SUMMARY

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

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

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

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

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

1. The Latest Media Coverage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bogus Defence #1

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

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

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

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

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

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

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

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

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

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

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

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

Bogus Defence #2

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

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

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

Bogus Defence #3

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

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

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

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

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

Bogus Defence #4

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

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

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

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

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

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

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

MORE DETAILS

CBC News Online April 19, 2021

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

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

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

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

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

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

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

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

He hopes the protocol won’t be needed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MORE ON THIS TOPIC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Email: [email protected] | Twitter: sharon_kirkey




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City of Calgary to invest $2.5M for upgrades to new home for National accessArts Centre – Calgary


Much-needed funding has been secured to help The National accessArts Centre, formerly known as Indefinite Arts Centre, move into its new home after a roof collapse at the Fairview Arena in 2018.

The arts organization, which provides artistic training for people with developmental, physical and acquired disabilities, is expected to set up shop in the Scouts Canada building along Memorial Drive.

Read more:
Indefinite Arts Centre finds new name and potential new home

According to a letter addressed to the organization from the City of Calgary, the City has secured $2.5 million for accessibility upgrades and repairs to the building, which is also a City of Calgary Historic Resource.

“These improvements are being done with the intention of offering the National accessArts Centre the space as their future new home,” City of Calgary building infrastructure manager Susan Specht wrote in the letter.

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Specht said the City is in the process of looking for a consultant, and engagement with the National accessArts Centre on interior renovation requirements in early-April.

The location was identified as a potential location for the centre to move into in November, but money was needed for upgrades on the city-owned facility to make it accessible for artists with disabilities.

“This is an exciting step forward for our organization,” National accessArts Centre CEO Jung-Suk Ryu said. “For three years, we’ve faced tremendous challenges and uncertainty following the collapse of the adjoining arena, and this has had an impact on our community of more than 300 artists living with disabilities.”

“Now, we are moving towards having a safe, fully accessible home for our organization.”

Read more:
Officials to begin demolition at Fairview Arena, inspections at other arenas underway

The Centre’s current location is in an adjoining facility to the Fairview Arena, which had its roof collapse in 2018.

The collapse prompted the arts organization to evacuate its adjoining space for six months while the City of Calgary completed an assessment of the building.  In November it was decided the building the arts organization occupied would also be demolished.

The arena, built in 1972, was demolished in March.

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According to the City, the process to designate the Scouts Canada building as a municipal heritage resource is underway, and may come with requirements that affect project timelines.

Ryu said the group is expected to take occupancy of the building in late 2021 or early 2022.




© 2021 Global News, a division of Corus Entertainment Inc.





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Canadian senators to vote on assisted dying bill Feb. 17 as deadline looms – National


Senators have agreed to put a bill to expand access to medical assistance in dying to a final vote by Feb. 17, but they’ve signalled their intention to propose substantial amendments.

The agreed date for the vote will leave just over a week for the House of Commons to deal with any amendments approved by the Senate before a thrice-extended, court-imposed deadline of Feb. 26.

It’s a tight timetable that could yet make it impossible to meet the court deadline.

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Canadian Senate committee accepts assisted dying bill but amendments still to come

Senators, who began final debate Monday, will begin dealing with the amendments to Bill C-7 on Tuesday.

An amended version of the bill would have to go back to the House of Commons for MPs to decide whether to accept or reject the amendments before shipping it back to the Senate, where senators would have to decide whether to approve the bill even if some or all of their amendments were rejected.

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In theory, the bill could bounce repeatedly back and forth between chambers.

The bill is intended to bring the law into compliance with a 2019 Quebec Superior Court ruling that struck down a provision allowing assisted dying only for those whose natural death is “reasonably foreseeable.”

It scraps that provision but retains the foreseeable death concept to set up two sets of rules for eligibility: more relaxed rules for those who are near death and more stringent rules for those who are not.

It would also expressly prohibit assisted dying for individuals who are suffering solely from mental illnesses.

Sen. Marc Gold, the government’s representative in the Senate, acknowledged that some senators think the bill goes too far, while others think it doesn’t go far enough. But he said, to his mind, that divergence of opinion demonstrates that the bill has struck the right balance.


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Health Matters: end-of-life planning in light of COVID-19


Health Matters: end-of-life planning in light of COVID-19 – Jun 18, 2020

“The bottom line is that it is a reasonable, prudent proposal that achieves a complex balancing of rights … Bill C-7 is neither too hot, nor too cold, but just the right temperature,” Gold said during Monday’s debate.

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Gold further suggested that unelected senators should be cautious about tinkering with the bill, noting it was supported by two-thirds of elected MPs from all parties in the House of Commons, giving it “a strong democratic stamp of approval.”

But Sen. Pierre Dalphond, a former judge who sits in the Progressive Senate Group, argued that the exclusion of those suffering solely from mental illnesses is unconstitutional, violating their right to equal treatment under the law regardless of physical or mental disability.

Dalphond said he believes it’s reasonable to propose a sunset clause to put a time limit on that exclusion, giving the government time to come up with guidelines for providing assisted dying to people with mental illnesses.

And he said he’ll introduce another amendment to specify that the ill-defined concept of mental illness does not include neuro-congnitive disorders such as Alzheimer’s disease, dementia, Parkinson’s disease and Huntington’s disease.

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There is support among senators for referring the bill to the Supreme Court for advice on its constitutionality, both from those who think it’s too restrictive and those who think it’s too permissive.

Sen. Don Plett, leader of the Conservatives in the Senate, questioned why senators are rushing to expand access to what he termed “physician-induced death,” based on “a lower court decision made by one judge in one province” that the government chose not to appeal.

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He implored his colleagues to listen to disability rights advocates who have denounced the bill for sending the “harmful and tragic message” that the lives of people with disabilities are not worth living.

Plett argued that extending access before improving palliative care and support services for people with disabilities will make it “easier to die than to live” and doesn’t give vulnerable people a real choice.


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Bill aims to ease rules in Canada’s medically-assisted dying laws


Bill aims to ease rules in Canada’s medically-assisted dying laws – Feb 25, 2020

Conservative Sen. Denise Batters said it’s “disgraceful” that the government is pushing a bill to expand access to assisted dying in the midst of a pandemic, when vulnerable people are even more “alone, isolated and economically disadvantaged” and with even less access to support services.

She argued that Black, racialized, Indigenous and poor Canadians with disabilities, “people who have been routinely pushed to the margins of our society,” are “crying out to us for help but they don’t want help to die, they want help to live.”

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However, Sen. Chantal Petitclerc, a former Paralympian who is sponsoring the bill in the Senate, noted that the court ruling to which the bill is responding was triggered by Nicole Gladu and Jean Truchon, two Quebecers with severe disabilities.

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Petitclerc, a member of the Independent Senators Group, said senators can’t ignore the inequalities that exist in society or the lack of support services that can exacerbate suffering.

But she said she believes the government has correctly chosen to permit assisted dying “in order to respect the autonomy of those who choose it freely as a release from intolerable suffering,” rather than prohibit it for all people with disabilities “until all support and all resources are available.”




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Constitutional challenges to assisted dying bill inevitable: Government Senate rep – National


The government’s representative in the Senate concedes it’s possible that a bill to expand access to medically assisted dying may be struck down as unconstitutional by the courts.

But while parliamentarians must be guided by court rulings, Sen. Marc Gold argued Tuesday they also have a duty to try to balance competing rights and interests.

In Bill C-7, he contended, the government has struck a “reasonable and responsible balance” between the autonomy of intolerably suffering Canadians who are not near death and the need to protect the most vulnerable individuals.

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Gold, a former constitutional law professor, gave a lengthy speech in the Senate devoted almost entirely to the constitutionality of the bill. He noted that some senators believe the bill is unconstitutional because it is too permissive, others because it’s too restrictive.

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“I understand very well that there are very good arguments on both sides of many of these issues,” he told the Senate.

Gold said court challenges to the constitutional validity of Bill C-7 are “inescapable” but it’s impossible to predict how the courts might rule on it.

“For better and for worse, the courts will continue to be seized with this issue as individuals and groups seek to vindicate their constitutional rights, however they conceive them,” he said.

“But this cannot be a reason for government and for Parliament to abdicate their responsibilities to legislate in good faith and in the best interests of Canadians.”

Bill C-7 is intended to bring the law into compliance with a September 2019 Quebec Superior Court ruling, which struck down the provision that allows MAID only for those whose natural death is reasonably foreseeable.


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Health Matters: end-of-life planning in light of COVID-19 – Jun 18, 2020

The bill would scrap the near-death requirement but would retain the concept to create two eligibility tracks for MAID: somewhat relaxed rules for people who are close to death and more stringent rules for those who aren’t.

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The bill specifically prohibits MAID for people suffering solely from mental illnesses, an exclusion some senators believe is a violation of equality rights. Some also believe the more stringent eligibility rules for people not near the end of life are also unconstitutional.

On the other side of the equation, some senators echo the concerns of disability rights groups in contending that the bill is unconstitutional because it singles out people with disabilities as the only ones eligible for MAID when they are not approaching the end of life.

“As any student of the charter (of rights and freedoms) will know, arguments about rights _ and especially equality rights _ are inherently controversial and predicting how a court might rule is a very risky business,” Gold said.

He laid out the government’s justification for excluding people suffering solely from mental illness, arguing that the trajectory of their conditions is uncertain and that a desire to die can be a symptom of the illness.

He argued that the exclusion can be justified as a reasonable limit on rights, as allowed under the charter, because it is “neither arbitrary, over-broad or grossly disproportionate.”

Still, he acknowledged the possibility that it could be struck down as a violation of equality rights or the right to life, liberty and security of the person, notwithstanding the government’s view.

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“The government is aware that there are strong constitutional opinions to the contrary and that the arguments against this aspect of C-7 are worthy of serious consideration and debate,” Gold said.

“I certainly have wrestled with them, as should we all.”

He promised that amendments to improve the bill would be seriously considered by the government.

Sen. Stan Kutcher, a psychiatrist who is a member of the Independent Senators Group, told the Senate that the exclusion of people suffering solely from mental illness is unacceptable and “dehumanizing.”

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“It perpetuates centuries-long stigmatization of those living with mental disorders as incompetent and incapable beings,” he said.

The reasons the government gives for the exclusion apply to people with physical illnesses as well, Kutcher argued, noting that “the presence of a severe and chronic illness is, by itself, an elevated risk factor for suicide.”

He promoted the idea of adding a sunset clause, giving time for adequate guidelines to be developed for allowing MAID to people suffering solely from mental illness.

But that was “vehemently opposed” by Conservative Sen. Denise Batters, whose husband, former MP Dave Batters, took his own life after battling depression and anxiety.

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“I have seen up close the failures of our mental health system,” she said, citing costs, stigma and a lack of resources.

“The answer those barriers is to fix that system, not to confirm a mentally ill patient’s feelings of hopelessness and offer them the lethal means to suicide.”

Batters also argued that the bill makes people with disabilities “second-class citizens.”

Gold acknowledged the concerns of some senators that people with disabilities can’t make a real choice about ending their lives because they’re not given adequate access to palliative care or support services.

But while it’s important to improve such services, he said that issue falls under provincial jurisdiction and can’t be addressed through the Criminal Code.




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