What is the Ontario Human Rights Code?


Under the Integrated Accessibility Standards Regulation (IASR), organizations must comply with the standards of the Accessibility for Ontarians with Disabilities Act (AODA). In addition, they must also follow requirements under the Ontario Human Rights Code (the Code). In other words, the AODA and the Code work together to promote accessibility and reduce discrimination in Ontario.

What is the Ontario Human Rights Code?

The Ontario Human Rights Code protects people from discrimination in five sectors of society. One of these sectors is employment. For instance, the Code protects people from discrimination in:

  • Full-time work
  • Part-time work
  • Short-term or contract work
  • Work probation
  • Volunteer work
  • Student internships
  • Special employment programs

Similarly, the Code protects people’s right to freedom from discrimination when renting housing, including:

  • Private rental housing
  • Cooperative housing
  • Social housing
  • Supportive or assisted housing

Likewise, the Code requires freedom from discrimination when people access goods, services, and facilities in the public or private sector, including:

  • Insurance
  • Schools
  • Restaurants
  • Transportation
  • Police
  • Healthcare
  • Social services
  • Shopping

Furthermore, people have the right not to experience discrimination during membership in unions, professional associations, or trade unions, including:

  • Joining
  • Terms and conditions of membership

Finally, people have the right to contract with others free from discrimination, including:

  • Offers of entering into contracts
  • Accepting contracts
  • Prices
  • Rejecting contracts

In short, the Code protects people from discrimination in employment, housing, business dealings, and other services. Therefore, under the Code, organizations must prevent discrimination in all these areas. Moreover, they must also respond to discrimination when it happens.

Grounds of Discrimination

Under the Code, people and organizations cannot discriminate on the basis of:

  • Age
  • Ancestry, colour, or race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Religion
  • Disability
  • Family status
  • Marital status
  • Gender identity, or gender expression
  • Receiving government assistance (for housing)
  • Record of offences (in employment)
  • Sex
  • Sexual orientation

Consequently, when people experience discrimination at work, in housing, or in the other areas that the code covers, they can claim discrimination before the Human Rights Tribunal of Ontario (HRTO). Moreover, according to the HRTO, most human rights claims are made on the grounds of disability.

In addition, the Ontario Human Rights Commission (OHRC) is an organization that promotes, protects, and advances human rights throughout the province. For instance, the OHRC writes policies to help people understand what types of discrimination are, and how to prevent and respond to them. Furthermore, these policies include guidelines, best practices, and examples to show organizations how to create spaces and services that respect the rights of all people.

In our next series of articles, we will explore how the Ontario Human Rights Code protects people from discrimination on the basis of disability. We will outline how the Code’s mandates support people with disabilities and their loved ones to live, work, and be part of their communities.




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


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

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

SUMMARY

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

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

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

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

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

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

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

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

For more background, check out:

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

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

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

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

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

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

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

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

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

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

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

Stakeholder Roundtable

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

Summary Report

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

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

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

Key Issues/Concerns and Potential Actions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roundtable Facilitator:
Kwame McKenzie (CEO, Wellesley Institute)

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

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

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

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

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

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

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

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

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

APPENDIX 2: Development of the Proposed Framework

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

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

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

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

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

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

Acknowledgments:

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

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

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

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

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

APPENDIX 3: Roundtable Documents

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

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

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

Publicly Available Advocacy/Feedback related to Critical Care Triage

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

Journal & Media Articles

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

Summary of OHRC Feedback on Triage Framework
December 18, 2020

Interim Framework / Protocol

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

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

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

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

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

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

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

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

o Ensure a fair and efficient appeal mechanism

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

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

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

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

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

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

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

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

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

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

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

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

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




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‘Still far away’ from Ontarians being able to choose what COVID-19 vaccine they receive, Elliott says



Ontario Deputy Premier and Health Minister Christine Elliott said Thursday that the province is “still far away” from when Ontarians will be able to choose what vaccine they receive, because of limitations with with the Pfizer-BioNtech vaccine and the number of accessible doses.



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Ontario looking to introduce digital ID program, seeking public input


The Ontario government says it is looking for the public’s input on a possible digital ID program that would allow for people to prove who they are online much easier.

The hope is that the program will be introduced by the end of 2021.

The program will allow for people to “securely and conveniently prove their identity online,” according to the Ford government. It will also help people to be able to access things online rather than have to travel to do things in-person, the government said, such as a small business applying for a license or a parent looking for information on their child’s immunization records.

Read more:
Vehicle sticker or driver’s licence expired in 2020? Both still legal in Ontario for now

“We want to assure people that a digital ID will not only offer simpler and easier access to services, but it will be safe and secure, encrypted and harnessing the latest technology to protect your information and credentials,” said Peter Bethlenfalvy, minister responsible for Digital and Data Transformation.

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The government said it will also help with COVID-19 safety protocols, as it limits in-person contact.

The public can weigh in online through surveys provided by the government here from now until Feb. 26.

The government said the program will also help to combat identity fraud and protect Ontarians data. They also said it has the potential to add $4.5 billion of value to the “small-and-medium-size enterprises sector nationally.”

Read more:
Questions raised about new support staff hiring for Ontario schools reopening amid COVID-19 pandemic

“By using this innovative technology, users will be in full control of what identity information is shared and with whom,” the statement read.

The digital ID program will be voluntary and for those who do not wish to participate, they can still use physical documents to prove identity.

“As we develop this initiative, we want to hear directly from the people to ensure their priorities are reflected in this innovative, digital approach,” Bethlenfalvy continued. “No one has a monopoly on good ideas and we are prepared to listen.”




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





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Canada and Ontario Invest in Accessible Public Transit Infrastructure for Residents of Peel Region


From: Infrastructure Canada

Region of Peel, Ontario, January 27, 2021-The safety and well-being of Canadians are top priorities of the governments of Canada and Ontario. Investments in Ontario’s infrastructure during this extraordinary time provides an opportunity to create jobs, stimulate economic growth, and to make our communities more inclusive and resilient.

That is why, together, these governments are taking decisive action to help families, businesses and communities as they adapt to the realities of the COVID-19 pandemic.

Ontarians need safe and reliable public transit to get to work and home, to appointments, to shop for essentials, and to conduct business. Strategic investments in accessible public transportation infrastructure play a key role in delivering this service.

Today, The Honourable Catherine McKenna, Canada’s Minister of Infrastructure and Communities; Sylvia Jones, Solicitor General of Ontario and Member of Provincial Parliament for Dufferin-Caledon, on behalf of The Honourable Laurie Scott, Ontario’s Minister of Infrastructure; and Nando Iannicca, Regional Chair and Chief Executive Officer of the Corporation of the Regional Municipality of Peel, announced funding for two projects that will modernize and improve accessibility for Peel Region’s public transit system.

The Government of Canada is investing more than $3.5 million in these projects through the Public Transit Infrastructure Stream (PTIS) of the Investing in Canada plan. The Government of Ontario is providing close to $3 million, and the Region of Peel is contributing more than $2.3 million.

One project involves the replacement of existing specialized transit buses with 69 new, specialized, 8-metre buses as the current fleet reaches the end of its planned service lifecycle. The new propane-powered buses, with side-mounted lift, will provide accessible transit in Brampton, Mississauga, and Caledon, and are capable of carrying as many as six wheelchair passengers.

The second project involves the adoption of the PRESTO electronic fare collection system across the Regional Municipality of Peel’s TransHelp fleet. This project includes the design, planning, purchase and hardware installation of up to 145 portable, tablet-based, electronic payment units.

These projects will result in increased capacity, and improved quality, safety and access to the public transit system in the Region of Peel.

All orders of government continue to work together for the people of Ontario to make strategic infrastructure investments in communities across the province when needed most.

Quotes

“These investments will help make sure there’s accessible public transit, powered by lower-emissions propane, for residents across Peel Region, throughout Mississauga, Brampton and Caledon. And by modernizing the public transit payment method to one already in use in other Ontario cities, we’re giving TransHelp bus riders more options to make fare payment easier. Canada’s infrastructure plan invests in thousands of projects, creates jobs across the country, and builds cleaner, more inclusive communities.”

The Honourable Catherine McKenna, Federal Minister of Infrastructure and Communities

“The modernization of public transit is vital to ensure that the system is accessible for all residents of Peel Region. These investments will expand accessibility to transit, improve payment efficiency and give all residents the option to get around quickly and affordably.”

The Honourable Omar Alghabra, Federal Minister of Transport

“Increasing accessibility to transit in our community is welcomed and exciting news. Many residents of Caledon and across our region rely on Peel Transhelp to get to work, school and appointments. Our government’s close to $3 million investment will greatly improve the quality of life for many individuals and families.”

Sylvia Jones, Solicitor General of Ontario and Member of Provincial Parliament for Dufferin-Caledon, on behalf of the Honourable Laurie Scott, Ontario’s Minister of Infrastructure

“Making it easier for families to travel in, out, and around Peel region is a priority of our government. Improving public transit accessibility by expanding the Peel Transhelp fleet with more energy efficient buses will help keep Peel moving safely and efficiently for all who call our Region home.”

Prabmeet Sarkaria, Associate Minister of Small Business and Red Tape Reduction, and Member of Provincial Parliament for Brampton South

“Peel’s goal is to create a place where everyone enjoys a sense of belonging and has access to the services and opportunities needed to thrive. This funding supports initiatives that directly improve the service experience for passengers with disabilities and advances the modernization of specialized transit in Peel. It’s an example of all levels of government working together to directly benefit the community by ensuring residents with disabilities can continue to travel without barriers.”

Nando Iannicca, Regional Chair and Chief Executive Officer of the Corporation of the Regional Municipality of Peel

Quick facts

Through the Investing in Canada plan, the Government of Canada is investing more than $180 billion over 12 years in public transit projects, green infrastructure, social infrastructure, trade and transportation routes, and Canada’s rural and northern communities.

Across Ontario, the Government of Canada has invested more than $8.1 billion in over 2,750 infrastructure projects.

$28.7 billion of this funding is supporting public transit projects.

Ontario is investing over $10.2 billion under the Investing in Canada Infrastructure Program to improve public transit; community, culture and recreation; green, and rural and northern community and other priority infrastructure.

Across the province, Ontario is investing more than $7.3 billion in public transit infrastructure over 10 years through the

Contacts

Chantalle Aubertin
Press Secretary
Office of the Minister of Infrastructure and Communities
613-941-0660
[email protected]

Christine Bujold
Press Secretary
Office of the Honourable Laurie Scott, Ontario’s Minister of Infrastructure 416-454-1782
[email protected]

Sofia Sousa-Dias
Communications Branch
Ontario Ministry of Infrastructure
437-991-3391
[email protected]

Amie Miles
Manager, Strategic Client Communications
Region of Peel
416-209-4317
[email protected]

Media Relations
Infrastructure Canada
613-960-9251
Toll free: 1-877-250-7154
Email: [email protected]

Original at https://www.canada.ca/en/office-infrastructure/news/2021/01/canada-and-ontario-invest-in-accessible-public-transit-infrastructure-for-residents-of-peel-region.html




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Accessible Employment in Ontario and Manitoba


Many separate accessibility standards development processes exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA, with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA standards may change to align with laws in other places across the country. In this article, we will explore accessible employment in Ontario and Manitoba.

Accessible Employment in Ontario and Manitoba

The Employment Standards under the AODA and the Accessible Employment Standard under the Accessibility for Manitobans Act both require service providers to make their employment practices accessible for workers with disabilities. Moreover, both standards require many of the same processes and practices to ensure accessibility. For instance, both standards require employers in the public and private sectors to:

Differences Between Standards

However, Manitoba’s standard includes additional requirements mandating further accessibility training for workers who are in charge of:

  • Recruiting, hiring, or training new workers
  • Supervising, managing, or coordinating workers
  • Promoting, redeploying, or terminating workers
  • Creating or overseeing employment policies and practices

Training must cover the following topics:

  • How to make employment opportunities accessible to workers with disabilities
  • Communicating with workers who have disabilities
  • Interacting with workers who have:
    • Service animals
    • Support persons
    • Assistive devices
  • Requirements of:
    • The Human Rights Code
    • The Accessibility for Manitobans Act
    • The Accessible Employment Standard

Workers must be trained as soon as possible after they are hired. Furthermore, workers must have training whenever their organizations’ employment accommodation policies are updated. In addition, all public-sector organizations and private sector organizations with fifty or more workers must document every time they train workers. Documentation must include a summary of the training that workers received.

Manitoba’s accessibility training for supervisors has many elements similar to required customer service training in both provinces. Nonetheless, this training could offer guidance about how accessibility applies to the employment context. In contrast, Ontario’s standard does not require additional accessibility training that covers accessible employment. However, the addition of this employment-specific training could help to dispel many harmful myths about workers who have disabilities. In other words, accessibility training that focuses on the workplace could help employers learn that people with disabilities can be not only customers, but workers.

The employment standards in the AODA and the Accessibility for Manitobans Act may change to improve accessibility in both provinces. To do so, the standards can exchange best practices, or learn them from standards that develop in other Canadian regions or jurisdictions.




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Accessible Customer Service in Ontario and Manitoba


Many separate accessibility standards development processes exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA, with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA standards development process may change to align with laws in other places across the country. In this article, we will explore accessible customer service in Ontario and Manitoba.

Accessible Customer Service in Ontario and Manitoba

The customer service standards under the AODA and the accessible customer service standard under the Accessibility for Manitobans Act both require service providers to make their goods and services accessible for customers with disabilities. Moreover, both standards require many of the same processes and practices to ensure accessibility. For instance, both standards require service providers in the public and private sectors to:

Differences Between Standards

However, Ontario’s standard requires providers to notify customers about disruptions to any accessible service. In contrast, Manitoba’s standard only requires providers to notify customers about disruptions involving the built environment. In other words, customers in Manitoba may not find out about disruptions to services they need, such as:

Moreover, while both standards apply to providers that offer goods and services, Ontario’s standard also applies to providers that operate facilities.

On the other hand, Manitoba’s standard requires providers to comply with the rules in their customer service policies. In contrast, Ontario’s standard requires providers to create policies, but does not directly state that providers must perform the tasks their policies describe.

In addition, Manitoba’s standard also requires providers to ensure the accessibility of public events, such as:

  • Public meetings
  • Public hearings
  • Consultation processes that the law requires

Under the standard, providers planning or hosting these events must:

  • Hold them in physically accessible locations
  • Ensure that notice of the events appears in accessible formats
  • Meet people’s needs for physical and communication accessibility, upon request
  • Notify the public that people can request accessibility support

In contrast, Ontario’s standard does not designate additional accessibility guidelines for public events. However, a higher degree of accessibility for these events could benefit Ontarians, because these events may have a large impact on the lives of the people who attend.

The customer service standards of the AODA and the Accessibility for Manitobans Act may change over time to improve accessibility. To do so, the standards can exchange best practices, or learn them from standards that develop in other Canadian regions or jurisdictions.




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CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need


And Other News on The Triage Issue

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

January 25, 2021

SUMMARY

The controversy keeps swirling around the Doug Ford Government’s secretive handling of the life-and-death question of who will be refused life-saving critical medical care if those services must be triaged or rationed, and the danger of disability discrimination, because the Government did not ensure sufficient hospital services for all who need them. Here are the three newest developments on this front.

1. The Friday, January 22, 2021 edition of CBC Radio’s health program, White Coat Black Art was devoted to the topic of how decisions will be made over who lives and who dies if the COVID-19 pandemic leads hospitals to have to ration or triage life-saving critical medical care. In his introduction, typically written after interviews were recorded, Dr. Goldman described how hospital case loads are growing, and stated:

Last week, hospitals in Ontario were given ICU (i.e. Intensive Care Unit) triage protocols from the Ministry of Health. A similar document was given to hospitals in Quebec earlier this month. These documents, which are backed by science, tell doctors how likely patients are to live or die, if they are admitted to the ICU.

Yet there is ample room from our own investigations and from Dr. Goldman’s interview that followed to question how much the Ontario triage protocol is backed by science, as opposed to a dangerous mirage of science that disguises the palpable danger of disability discrimination. Far from objective science, this program shows that triage decisions over who lives and who dies can be potentially expected to include doctors guestimating and improvising. Doctors and medicine do not have provably objective and reliable tools for predicting whether a critical care patient is likely to live beyond the next year.

This is proven by Dr. Goldman’s first guest on his program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

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

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

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

It is very good that this program addressed this topic. However, this program’s content was utterly lacking in desperately-needed and fundamental journalistic balance. The program’s host, Dr. Brian Goldman, only interviewed doctors, but no one from the disability community who have been raising serious concerns about disability discrimination.

That flew in the face of the program’s weekly opening line, which proclaims Welcome to White Coat Black Art, the show about medicine from all sides of the gurney. Contrary to its stated prime directive, this edition of that program took a selective look at this important issue from only one side of the gurney, that of the doctors. We have been reaching out to Dr. Goldman for months to cover the disability discrimination concerns with Ontario’s critical care triage protocol. The need for such was even flagged for the program by one of its two guests, Dr. Warner. In the only brief reference to disability perspectives on this entire program, Dr. Warner commendably stated on his own initiative:

I think that disability and other advocates should definitely educate us on how this policy may not meet the needs of all patients so that it could be fair and equitable

CBC knows well about disability community advocacy on the triage issue. This is even more troubling given the difficulty we and the disability community have had for months in getting the media to cover this issue, which has been looming throughout the pandemic.

2. Today, Ontario’s New Democratic Party commendably made public a letter sent by NDP Leader Andrea Horwath and NDP Disabilities Critic Joel Harden to Ontario Health Minister Christine Elliott. Set out below, that letter asks the Government to answer vital questions on this life-and-death issue which the Government has not answered to date. We thank the NDP for publicly asking these questions, and for endorsing the concerns on this issue that the AODA Alliance has been raising from the perspective of people with disabilities. We urge the Ford Government to end its protracted secrecy on this topic, and provide full and prompt answers.

3. The January 23, 2021 edition of the National Post included an extensive article on this issue, also below. It quoted AODA Alliance Chair David Lepofsky on some of our many concerns with the Government’s January 13, 2021 triage protocol.
We spelled those concerns out in the AODA Alliance’s January 18, 2021 letter to Health Minister Christine Elliott within days of receiving a leaked copy of that previously secret critical care triage protocol.

There have now been 725 days, or over 23 months, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes still worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past eleven months.

For more background on this issue, check out:

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

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

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

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

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

MORE DETAILS

January 22, 2021 Letter to Ontario Health Minister from Ontario New Democratic Party

Ministry of Health
5th Floor
777 Bay St.
Toronto, ON M7A 2J3

January 22, 2021

Dear Minister Elliott,

We are writing to you regarding the critical care triage protocol for Ontario hospitals in case of a major COVID-19 surge. With the latest modelling showing that ICUs may be full by early February, the prospect that doctors will have to make life and death decisions about who receives critical care and who doesn’t is not just hypothetical, it could become a reality.

On January 18, we obtained and made public a document dated January 13 written by the COVID-19 Critical Care Command Centre and issued to hospitals. It provides guidance on how hospitals should triage ICU patients in the awful event that emergency rooms are overwhelmed by COVID cases.

Disability rights organizations, including the AODA Alliance, have raised important concerns with the document. Firstly, that it was drafted in secret without the government consulting directly with disability organizations. Second, that it opens the door to discrimination on the basis of disability in the allocation of life-saving care. Finally, it does not offer patients a right of appeal outside the healthcare system, either to an independent tribunal or a court.

Instead of addressing these substantive concerns, we were puzzled by a Ministry of Health spokesperson distancing your government from the document altogether. The Ministry maintains that it is not a triage protocol, despite the fact that it lays out how hospitals should triage critical care patients. Your spokesperson also claimed that the document was not approved or endorsed by the Ministry of Health, even though it was authored by the Critical Care Command Centre your government created.

To this end, we would like you to answer the following questions: Your government says it has not approved the January 13 triage protocol, but it is in doctors’ hands right now. Will you rein in any bodies claiming to instruct hospitals on triage, and revoke the January 13 protocol?

The National Post has reported that the government’s Bioethics Table recommended temporarily suspending the law which requires patient or family consent before life-sustaining treatment is withdrawn from a critical care patient. Is your government considering this and if so, will you immediately publicize any regulations or legislation under consideration for public discussion about this life and death matter?

The Premier promised complete transparency at the start of this pandemic but Minster, your government’s approach to clinical triage has been anything but transparent. The public has a right to know what hospitals are being told to do in the event of a major COVID surge, who is telling them to do so, and to be consulted so that any protocol respects the human rights of all Ontarians, particularly those with disabilities.

We look forward to your response.

Sincerely,

Andrea Horwath Joel Harden
Leader of the Official Opposition MPP, Ottawa Centre

National Post January 23, 2021

A plan of last resort: Choosing who lives and dies if ICUs are overrun; Random selection
Graphic: Nathan Denette, The Canadian Press / If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

It’s not quite drawing names from a hat.

But if COVID-19 pushes hospitals to crisis levels, Ontario hospitals have been instructed that, when faced with tiebreaking situations –
one empty bed in the ICU, and two, four or more critically sick people with more or less equal chances of surviving competing for it – random selection should be applied.

Each person would be assigned a number. The administrator on call would enter the numbers in a random number generator like random.org, and then click the “generate” button.

“Randomization is efficient when decisions need to be made rapidly,” reads a critical care rationing plan prepared for Ontario hospitals designed to help doctors decide who should get access to beds, intensive care or ventilators in the event of a catastrophic COVID-19 surge. Randomization avoids power struggles between doctors, the document continues. It eliminates explicit or unconscious bias and, critically, reduces the moral and psychological burden of deciding whom, ultimately, wins the bed. Who gets a chance at living.

It may sound dystopian and dehumanized. But far worse than a random number generator would be a human being having to choose, said Dr. Judy Illes, a professor of neurology at the University of British Columbia. “Because the people who have to administer those decisions are hugely at risk for moral distress and trauma.”

Doctors in Canada have never faced critical care rationing. There is no historical precedent. If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

And while thousands of people aren’t getting the timely care they need – knee surgeries, hip replacements, the start of new experimental drug regimes, because of backlogs when hospitals shut down to all but urgent care – most people in Canada have never had to worry about getting rationed for life-saving care.

Critical care triage protocols, like those now being distributed to Ontario and Quebec hospitals, are formed from lessons learned in battle fields and natural disasters. “But it will be no less heart-wrenching in this situation, and maybe even more so,” because the decisions will be taken in urban hospitals, Illes said, not in fields with grenades going off.

“It’s not a question of will the public cooperate? The public will have no choice,” said Illes, who warns that our autonomy will be eroded if we don’t take better control of the situation.

Nothing is fair about COVID-19, Illes and UBC political science professor Max Cameron wrote in April, and now, nine months out, aggressive mutations are spreading. Hospitalizations and deaths are increasing. An average of 878 people were being treated in ICUs each day during the past seven days. Healthcare workers are frightened, anxious, exhausted. Social distancing is slipping, Peter Loewen reported this week in Public Policy Forum; and most Canadians won’t be vaccinated until the end of September. Ten months into the pandemic, “and there are 10 months to go,” wrote Loewen, a political science professor at the University of Toronto. “This is halftime.”

Meanwhile, Ontario surpassed 250,000 confirmed infections, Quebec a breath away from the same grim mark, and while Quebec’s health ministry told the National Post Friday the province is still a long way from triggering its ICU prioritization protocol, doctors are nervously looking at the U.K, where a new variant is turning some hospitals into “war zones.”

“We want to avoid being patients,” Illes said. “We want to exercise our autonomy to help everyone get through this viral war that we’re in and that we’re not winning right now.”

If people don’t double down on distancing and masking and other precautions, choice will no longer be relevant, she said. “Procedures will take over; protocols will supersede choice. And the focus will be on this public-centred approach, maximizing the most good for the most number of people.”

The Ontario ICU triage protocol, used as a model for triage protocols adopted in Quebec, prioritizes those with the greatest likelihood of survival. (It applies to adults only, not children). People who have a high likelihood of dying within 12 months of the onset of their critical illness would be assigned lower priority for critical care. Doctors would score each person on a “short-term mortality risk assessment,” and across a whole range of different conditions – cancer, heart failure, organ failure, trauma, stroke or severe COVID-19 – ideally before they are intubated, connected to a ventilator. It aims to reduce “preventable deaths to the degree possible” under major surge conditions, with the “least infringement of human rights.” Consultant doctors would be available 24/7 to provide a timely (within the hour) estimate of a person’s survival, “recognizing that such estimates may not be perfect,” but likely more accurate than non-expert judgment. In the final “summary and care plan,” one of two boxes would be checked: the patient will, or will not be offered critical care. Those who don’t meet “prioritization criteria” won’t be abandoned. They’ll receive appropriate medical therapy and/or comfort care.

Most controversially is what is not included in the current plan – a recommendation before the Ontario government that life-support be withdrawn from people already in the ICU whose chances of survival are low, if someone with better prospects is waiting behind them.

The Post reported this week that Ontario Premier Doug Ford’s government is being asked by its external advisory COVID-19 Bioethics Table to pass an “executive order” that would permit doctors, without the consent of patients or families, to remove breathing tubes, switch off ventilators and withdraw other life-saving care from people who are deteriorating, and where further treatment seems futile, so that someone who otherwise might live can take their place.

Withdrawing treatment from someone who hasn’t consented to it could be argued to be culpable homicide, said disability rights advocate David Lepofsky. “There are huge legal questions here, and they need to be discussed in the open, because we’re talking about possibly taking an active action that could accelerate someone’s death,” he said.

“The government can’t decide on who lives and who dies by a memo, written in secret, with no debate in the legislature.”

Under normal conditions, withdrawing treatment without consent would be an “illegitimate choice,” Annette Dufner, of the University of Bonn, wrote in the journal Bioethics. Even in a pandemic, doctors might risk legal charges.

“At the same time, it is by no mean obvious that patients already under treatment in a setting of scarcity have the same moral claim on the respective medical resources they would normally have,” Dufner wrote. When scarce, “the use of resources can, after all, come at the cost of other patients’ lives.”

Any suspension of the consent act would be temporary, said Dr. James Downar, a member of Ontario’s Bioethics Table “And, to be super clear: if there are enough resources for everybody, this never happens.”

Outside the horror of having to choose, even the practicalities of deciding who gets an ICU bed and who should be “discharged” – the dispassionate euphemism for stopping intensive care – “these kinds of equitable, distributive justice kinds of decisions are very, very complicated,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

And how will patients, and families, be told that, “by virtue of this decree” you will, or will not, receive life-saving care? “I don’t know how it’s going to be done,” Goldberg said. “No one has ever done this.”

“Families will presumably have heard about this, from the press. But they may not. They may think this is science fiction. They may go to the courts, and I don’t know what the courts are even going to say in this case.”

Goldberg has never had to take community needs, values or resources into consideration when caring for the critically ill. “Never. Zero. When I have discussions with patients and families, my perspective is always deontological,” what’s best for the person lying in that hospital bed. That “duty to the patient” is now being supplanted by a utilitarian view that says we need to rescue the most lives, he said.

“I understand it, intellectually. But from a physician point of view that I was taught all these years, and from my own personal perspective, it’s just anathema.”

He takes comfort that admissions to his hospitals are coming down. He’s hoping it’s a trend. “The kids went back to school in Quebec yesterday, the high schoolers. The epidemiologists are telling us we may see a blip in 10 days or two weeks if schools really are a reservoir.”

“We’re waiting. We’re not putting our cards away. But we can’t get far enough away from this.”

Triage protocols, medically-guided protocols that are blind to disability, socio-economic status, cultural origin, are the only way to manage and mitigate the moral distress facing the people who will have to enact them, Illes said. “At the end of the day, it is physicians on the front line in the ICU with blood flowing on the floor who will bear the burden of decision-making.”

“How do we protect families from moral distress? I don’t know. No protocol is going to help anyone to understand that the people who cared for their loved person weren’t able to take the last-mile possible saving procedure,” she said.

“Let’s try to avoid ever going there.”

National Post

Sharon Kirkey




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CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need – And Other News on The Triage Issue


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/

CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need – And Other News on The Triage Issue

January 25, 2021

            SUMMARY

The controversy keeps swirling around the Doug Ford Government’s secretive handling of the life-and-death question of who will be refused life-saving critical medical care if those services must be triaged or rationed, and the danger of disability discrimination, because the Government did not ensure sufficient hospital services for all who need them. Here are the three newest developments on this front.

  1. The Friday, January 22, 2021 edition of CBC Radio’s health program, “White Coat Black Art” was devoted to the topic of how decisions will be made over who lives and who dies if the COVID-19 pandemic leads hospitals to have to ration or triage life-saving critical medical care. In his introduction, typically written after interviews were recorded, Dr. Goldman described how hospital case loads are growing, and stated:

“Last week, hospitals in Ontario were given ICU (i.e. Intensive Care Unit) triage protocols from the Ministry of Health. A similar document was given to hospitals in Quebec earlier this month. These documents, which are backed by science, tell doctors how likely patients are to live or die, if they are admitted to the ICU.”

Yet there is ample room from our own investigations and from Dr. Goldman’s interview that followed to question how much the Ontario triage protocol is “backed by science”, as opposed to a dangerous mirage of science that disguises the palpable danger of disability discrimination. Far from objective science, this program shows that triage decisions over who lives and who dies can be potentially expected to include doctors guestimating and improvising. Doctors and medicine do not have provably objective and reliable tools for predicting whether a critical care patient is likely to live beyond the next year.

This is proven by Dr. Goldman’s first guest on his program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

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

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

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

It is very good that this program addressed this topic. However, this program’s content was utterly lacking in desperately-needed and fundamental journalistic balance. The program’s host, Dr. Brian Goldman, only interviewed doctors, but no one from the disability community who have been raising serious concerns about disability discrimination.

That flew in the face of the program’s weekly opening line, which proclaims “Welcome to White Coat Black Art, the show about medicine from all sides of the gurney.” Contrary to its stated prime directive, this edition of that program took a selective look at this important issue from only one side of the gurney, that of the doctors. We have been reaching out to Dr. Goldman for months to cover the disability discrimination concerns with Ontario’s critical care triage protocol. The need for such was even flagged for the program by one of its two guests, Dr. Warner. In the only brief reference to disability perspectives on this entire program, Dr. Warner commendably stated on his own initiative:

“…I think that disability and other advocates should definitely educate us on how this policy may not meet the needs of all patients so that it could be fair and equitable…”

CBC knows well about disability community advocacy on the triage issue. This is even more troubling given the difficulty we and the disability community have had for months in getting the media to cover this issue, which has been looming throughout the pandemic.

  1. Today, Ontario’s New Democratic Party commendably made public a letter sent by NDP Leader Andrea Horwath and NDP Disabilities Critic Joel Harden to Ontario Health Minister Christine Elliott. Set out below, that letter asks the Government to answer vital questions on this life-and-death issue which the Government has not answered to date. We thank the NDP for publicly asking these questions, and for endorsing the concerns on this issue that the AODA Alliance has been raising from the perspective of people with disabilities. We urge the Ford Government to end its protracted secrecy on this topic, and provide full and prompt answers.
  1. The January 23, 2021 edition of the National Post included an extensive article on this issue, also below. It quoted AODA Alliance Chair David Lepofsky on some of our many concerns with the Government’s January 13, 2021 triage protocol.

We spelled those concerns out in the AODA Alliance’s January 18, 2021 letter to Health Minister Christine Elliott within days of receiving a leaked copy of that previously secret critical care triage protocol.

There have now been 725 days, or over 23 months, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes still worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past eleven months.

For more background on this issue, check out:

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

            MORE DETAILS

 January 22, 2021 Letter to Ontario Health Minister from Ontario New Democratic Party

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

January 22, 2021

Dear Minister Elliott,

We are writing to you regarding the critical care triage protocol for Ontario hospitals in case of a major COVID-19 surge. With the latest modelling showing that ICUs may be full by early February, the prospect that doctors will have to make life and death decisions about who receives critical care and who doesn’t is not just hypothetical, it could become a reality.

On January 18, we obtained and made public a document dated January 13 written by the COVID-19 Critical Care Command Centre and issued to hospitals. It provides guidance on how hospitals should triage ICU patients in the awful event that emergency rooms are overwhelmed by COVID cases.

Disability rights organizations, including the AODA Alliance, have raised important concerns with the document. Firstly, that it was drafted in secret without the government consulting directly with disability organizations. Second, that it opens the door to discrimination on the basis of disability in the allocation of life-saving care. Finally, it does not offer patients a right of appeal outside the healthcare system, either to an independent tribunal or a court.

Instead of addressing these substantive concerns, we were puzzled by a Ministry of Health spokesperson distancing your government from the document altogether. The Ministry maintains that it is not a triage protocol, despite the fact that it lays out how hospitals should triage critical care patients. Your spokesperson also claimed that the document was “not approved or endorsed by the Ministry of Health”, even though it was authored by the Critical Care Command Centre your government created.

To this end, we would like you to answer the following questions: Your government says it has not approved the January 13 triage protocol, but it is in doctors’ hands right now. Will you rein in any bodies claiming to instruct hospitals on triage, and revoke the January 13 protocol?

The National Post has reported that the government’s Bioethics Table recommended temporarily suspending the law which requires patient or family consent before life-sustaining treatment is withdrawn from a critical care patient. Is your government considering this and if so, will you immediately publicize any regulations or legislation under consideration for public discussion about this life and death matter?

The Premier promised “complete transparency” at the start of this pandemic but Minster, your government’s approach to clinical triage has been anything but transparent. The public has a right to know what hospitals are being told to do in the event of a major COVID surge, who is telling them to do so, and to be consulted so that any protocol respects the human rights of all Ontarians, particularly those with disabilities.

We look forward to your response.

Sincerely,

Andrea Horwath                                                                                Joel Harden

Leader of the Official Opposition                                                      MPP, Ottawa Centre

 National Post January 23, 2021

A plan of last resort: Choosing who lives and dies if ICUs are overrun; Random selection

Graphic: Nathan Denette, The Canadian Press / If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

It’s not quite drawing names from a hat.

But if COVID-19 pushes hospitals to crisis levels, Ontario hospitals have been instructed that, when faced with tiebreaking situations – one empty bed in the ICU, and two, four or more critically sick people with more or less equal chances of surviving competing for it – random selection should be applied.

Each person would be assigned a number. The administrator on call would enter the numbers in a random number generator like random.org, and then click the “generate” button.

“Randomization is efficient when decisions need to be made rapidly,” reads a critical care rationing plan prepared for Ontario hospitals designed to help doctors decide who should get access to beds, intensive care or ventilators in the event of a catastrophic COVID-19 surge. Randomization avoids power struggles between doctors, the document continues. It eliminates explicit or unconscious bias and, critically, reduces the moral and psychological burden of deciding whom, ultimately, wins the bed. Who gets a chance at living.

It may sound dystopian and dehumanized. But far worse than a random number generator would be a human being having to choose, said Dr. Judy Illes, a professor of neurology at the University of British Columbia. “Because the people who have to administer those decisions are hugely at risk for moral distress and trauma.”

Doctors in Canada have never faced critical care rationing. There is no historical precedent. If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

And while thousands of people aren’t getting the timely care they need – knee surgeries, hip replacements, the start of new experimental drug regimes, because of backlogs when hospitals shut down to all but urgent care – most people in Canada have never had to worry about getting rationed for life-saving care.

Critical care triage protocols, like those now being distributed to Ontario and Quebec hospitals, are formed from lessons learned in battle fields and natural disasters. “But it will be no less heart-wrenching in this situation, and maybe even more so,” because the decisions will be taken in urban hospitals, Illes said, not in fields with grenades going off.

“It’s not a question of will the public cooperate? The public will have no choice,” said Illes, who warns that our autonomy will be eroded if we don’t take better control of the situation.

Nothing is fair about COVID-19, Illes and UBC political science professor Max Cameron wrote in April, and now, nine months out, aggressive mutations are spreading. Hospitalizations and deaths are increasing. An average of 878 people were being treated in ICUs each day during the past seven days. Healthcare workers are frightened, anxious, exhausted. Social distancing is slipping, Peter Loewen reported this week in Public Policy Forum; and most Canadians won’t be vaccinated until the end of September. Ten months into the pandemic, “and there are 10 months to go,” wrote Loewen, a political science professor at the University of Toronto. “This is halftime.”

Meanwhile, Ontario surpassed 250,000 confirmed infections, Quebec a breath away from the same grim mark, and while Quebec’s health ministry told the National Post Friday the province is still a long way from triggering its ICU prioritization protocol, doctors are nervously looking at the U.K, where a new variant is turning some hospitals into “war zones.”

“We want to avoid being patients,” Illes said. “We want to exercise our autonomy to help everyone get through this viral war that we’re in and that we’re not winning right now.”

If people don’t double down on distancing and masking and other precautions, choice will no longer be relevant, she said. “Procedures will take over; protocols will supersede choice. And the focus will be on this public-centred approach, maximizing the most good for the most number of people.”

The Ontario ICU triage protocol, used as a model for triage protocols adopted in Quebec, prioritizes those with the greatest likelihood of survival. (It applies to adults only, not children). People who have a high likelihood of dying within 12 months of the onset of their critical illness would be assigned lower priority for critical care. Doctors would score each person on a “short-term mortality risk assessment,” and across a whole range of different conditions – cancer, heart failure, organ failure, trauma, stroke or severe COVID-19 – ideally before they are intubated, connected to a ventilator. It aims to reduce “preventable deaths to the degree possible” under major surge conditions, with the “least infringement of human rights.” Consultant doctors would be available 24/7 to provide a timely (within the hour) estimate of a person’s survival, “recognizing that such estimates may not be perfect,” but likely more accurate than non-expert judgment. In the final “summary and care plan,” one of two boxes would be checked: the patient will, or will not be offered critical care. Those who don’t meet “prioritization criteria” won’t be abandoned. They’ll receive appropriate medical therapy and/or comfort care.

Most controversially is what is not included in the current plan – a recommendation before the Ontario government that life-support be withdrawn from people already in the ICU whose chances of survival are low, if someone with better prospects is waiting behind them.

The Post reported this week that Ontario Premier Doug Ford’s government is being asked by its external advisory COVID-19 Bioethics Table to pass an “executive order” that would permit doctors, without the consent of patients or families, to remove breathing tubes, switch off ventilators and withdraw other life-saving care from people who are deteriorating, and where further treatment seems futile, so that someone who otherwise might live can take their place.

Withdrawing treatment from someone who hasn’t consented to it could be argued to be culpable homicide, said disability rights advocate David Lepofsky. “There are huge legal questions here, and they need to be discussed in the open, because we’re talking about possibly taking an active action that could accelerate someone’s death,” he said.

“The government can’t decide on who lives and who dies by a memo, written in secret, with no debate in the legislature.”

Under normal conditions, withdrawing treatment without consent would be an “illegitimate choice,” Annette Dufner, of the University of Bonn, wrote in the journal Bioethics. Even in a pandemic, doctors might risk legal charges.

“At the same time, it is by no mean obvious that patients already under treatment in a setting of scarcity have the same moral claim on the respective medical resources they would normally have,” Dufner wrote. When scarce, “the use of resources can, after all, come at the cost of other patients’ lives.”

Any suspension of the consent act would be temporary, said Dr. James Downar, a member of Ontario’s Bioethics Table “And, to be super clear: if there are enough resources for everybody, this never happens.”

Outside the horror of having to choose, even the practicalities of deciding who gets an ICU bed and who should be “discharged” – the dispassionate euphemism for stopping intensive care – “these kinds of equitable, distributive justice kinds of decisions are very, very complicated,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

And how will patients, and families, be told that, “by virtue of this decree” you will, or will not, receive life-saving care? “I don’t know how it’s going to be done,” Goldberg said. “No one has ever done this.”

“Families will presumably have heard about this, from the press. But they may not. They may think this is science fiction. They may go to the courts, and I don’t know what the courts are even going to say in this case.”

Goldberg has never had to take community needs, values or resources into consideration when caring for the critically ill. “Never. Zero. When I have discussions with patients and families, my perspective is always deontological,” what’s best for the person lying in that hospital bed. That “duty to the patient” is now being supplanted by a utilitarian view that says we need to rescue the most lives, he said.

“I understand it, intellectually. But from a physician point of view that I was taught all these years, and from my own personal perspective, it’s just anathema.”

He takes comfort that admissions to his hospitals are coming down. He’s hoping it’s a trend. “The kids went back to school in Quebec yesterday, the high schoolers. The epidemiologists are telling us we may see a blip in 10 days or two weeks if schools really are a reservoir.”

“We’re waiting. We’re not putting our cards away. But we can’t get far enough away from this.”

Triage protocols, medically-guided protocols that are blind to disability, socio-economic status, cultural origin, are the only way to manage and mitigate the moral distress facing the people who will have to enact them, Illes said. “At the end of the day, it is physicians on the front line in the ICU with blood flowing on the floor who will bear the burden of decision-making.”

“How do we protect families from moral distress? I don’t know. No protocol is going to help anyone to understand that the people who cared for their loved person weren’t able to take the last-mile possible saving procedure,” she said.

“Let’s try to avoid ever going there.”

National Post

Sharon Kirkey



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Even More Reason to Worry About Secret Ontario Plans Regarding Rationing or Triage of Life-Saving Critical Medical Care Is Revealed in Two Newspaper Articles and a Letter Secretly Sent to Ontario Hospitals


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/

Even More Reason to Worry About Secret Ontario Plans Regarding Rationing or Triage of Life-Saving Critical Medical Care Is Revealed in Two Newspaper Articles and a Letter Secretly Sent to Ontario Hospitals

January 22, 2021

            SUMMARY

We today share more media coverage on the Ford Government’s frightening plans for deciding who will be refused life-saving critical medical care they need, if the out-of-control COVID-19 pandemic forces the rationing or triage of critical care. More revelations give rise to more serious dangers facing Ontarians with disabilities and others if that eventuality arises – an eventuality that a key Government medical advisor Dr. James Downar described as being “close”, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

We here set out two disturbing new news reports on this issue, and a letter addressed to Ontario hospitals by a member of the Ford Government’s Ontario Critical Care COVID Command Centre, Dr. Andrew Baker. Below you will find:

  1. A January 21, 2021 article in the National Post, which quotes AODA Alliance concerns, among others.
  1. A January 20, 2021 article in the Globe and Mail and, which also quotes AODA Alliance concerns, among others.
  1. An undated letter from Dr. Andrew Baker to Ontario hospitals, giving directions regarding the administration of critical care triage if it becomes necessary.

Before we set out those items below, we first explain the serious new concerns revealed here. These supplement our amply-documented major concerns with the Government’s plans and secretive planning that we have been making public over the past days, weeks and months.

For more background on this issue, check out the following:

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

            MORE DETAILS

More Terrifying News Hidden Behind a Fog of Unjustified Ford Government Secrecy

According to the January 21, 2021 National Post report set out below, the Ford Government’s external advisory Bioethics Table has recommended to the Health Ministry that the Ford Government pass an “executive order” that permits doctors to cut off life-saving critical care they have already started to administer to a patient, and which the patient needs, if critical care has to be rationed or triaged. By this, doctors would not just be told they can decide which patients in a line-up outside the intensive care ward will be allowed in, if there are too few beds for all patients in the lineup. More drastically, the doctors would also have the power to evict some patients from the intensive care unit, who were previously admitted, and give their beds and ventilators over to a patient or patients who are outside the unit, and waiting in the lineup to get in.

It is not clear to us that the Ontario Government can authorize this at all, much less by acting in secret to pass an “executive order”. On the January 13, 2021 edition of The Agenda with Steve Paikin, AODA Alliance Chair David Lepofsky raised the serious concern that for a doctor to do this could raise possible issues under the Criminal Code. We earlier raised a concern about this in the AODA Alliance’s December 17, 2020 letter to the Minister of Health Christine Elliott and in our December 21, 2020 news release. As with all our other letters to the Government on this issue, that letter has never been answered. No Ministry of Health officials ever discussed this with us.

Still worse, we are entirely unsatisfied that any such “executive order” (an American legal term) would be constitutional under the Charter of Rights and would be permissible under the Ontario Human Rights Code, especially in light of the serious disability discrimination at the core of the Ontario Critical Care COVID Command Centre’s January 13, 2021 triage protocol (addressed in detail in our unanswered January 18, 2021 letter to the Minister of Health). This shows with even greater clarity why it is wrong for the Government to leave the planning and execution of directions on this issue solely to physicians and bioethicist, who have no expertise in these important legal issues. The Ford Government should be leading a public debate on its plans, rather than cloaking it in secrecy and claiming it is all left to experts (i.e. doctors) talking to other experts (also referring to doctors). We doubt that the medical profession wishes to have the Government slough this all off on them.

This gives us serious grounds to fear that the Government may try to continue to hide from any public discussion of this issue until the last minute. It may be thinking about then secretly rushing through some sort of “executive order” or regulation behind close doors at the last minute, if it becomes necessary due to hospital overloads. We strongly urge that the Government not take such an approach. The consequences for Ontarians including Ontarians with disabilities are literally life-and-death. This requires any Government action to now be discussed and debated publicly.

Amidst this frightening news, it is noteworthy that the Bioethics Table’s September 11, 2020 report to the Ford Government said that doctors involved in triage decisions should be protected from liability. The opposite is the case. Anyone making such a life-and-death decision should not be immunized from responsibility and accountability for their conduct. No one is above the law.

Compounding this bad news is the erroneous claim in the January 20, 2021 Globe and Mail article, below, by Dr. James Downar, that says in substance that the Ontario triage protocol does not discriminate against patients with disabilities. The article, which describes Dr. Downar as the one who drafted the Ontario protocol, includes:

“Dr. Downar said the protocols “will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.””

The AODA Alliance, the ARCH Disability Law Centre and other disability advocates and experts last summer amply showed the Government-appointed Bioethics Table (of which Dr. Downar is a prominent member) that it would seriously discriminate against patients with disabilities for doctors to in any way use the “Clinical Frailty Scale’ when assessing any patient for possibly being triaged out of critical care services. Under the Clinical Frailty Scale as mandated in the January 13, 2021 triage protocol, in the case of a critical care patient age at least 65 with a progressive disease but who has more than six months to live, their likely mortality would be assessed in part by the number of activities of daily living that they can perform without assistance, having regard to each of these specific activities: dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The CFS is a clear illustration on its face of direct disability discrimination.

You can read what the AODA Alliance said in great detail on this in its August 30, 2020 written submission to the Bioethics Table. You can watch AODA Alliance Chair David Lepofsky explaining this to the Bioethics Table in his August 31, 2020 concluding presentation to that Table, which is available online as a captioned video. You can also read how the ARCH Disability Law Centre documented this disability discrimination in ARCH’s September 1, 2020 written submission to the bioethics Table.

Yet despite all of this advice, the Bioethics Table recommended use of the disability discriminatory Clinical Frailty Scale in some triage decisions. The January 13, 2021 triage protocol directs doctors to use it in some triage decisions. The fact that the January 13, 2021 triage protocol generally professes the need to respect the human rights of people with disabilities among others does not reduce that discrimination one iota.

It is clear from these two newspaper articles and from the January 13, 2021 edition of Agenda with Steve Paikin that Dr. Downar is now serving in effect as the key public defender if not its spokesperson of the Ford Government on this issue. It is important for the Government to make clear who is making decisions on this issue. We wrote and tweeted to Dr. Downar over a week ago to ask what involvement, if any, he has in the Ontario Critical Care COVID Command Centre.

He has not answered. We emphasized that our concern is not with any one doctor. We are concerned that the Ford Government open up and make public its secret internal actions and deliberations on this triage issue. We all have the right to know what is being planned, and who is doing all the planning and decision-making.

Finally, we are deeply troubled by the secret letter to Ontario hospitals from the Ontario Critical Care COVID Command Centre’s Dr. Andrew Baker, set out below. It shows that the Ford Government had sent an earlier secret draft critical care triage protocol to Ontario hospitals back on November 13, 2020. We were never shown that document. It was sent a mere 8 days after the Ford Government stated in the Legislature during Question Period on November 5, 2020 that it thought it unlikely that such a document would have to be sent to health professionals.

It is also clear from the letter below that the November secret 13, 2020 triage document had recommended that the triage protocol include some due process appeal opportunities for a patient who is to be denied life-saving critical care. We now know that that has subsequently been harmfully ripped right out of the January 13, 2021 triage protocol, to the serious detriment of patients fighting for their lives.

As we stated in the January 21, 2021 AODA Alliance Update, the Government is claiming that it has not approved any of these triage plans. If so, why is Dr. Baker or any other doctor or committee sending such instructions or directions to hospitals? Who is taking responsibility for this life-and-death issue?

The National Post January 21, 2021

Originally posted at https://nationalpost.com/news/canada/ontario-wrestles-with-who-gets-icu-treatment-in-event-hospitals-overwhelmed-with-covid-patients

Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals

Ontario is being asked to temporarily suspend the law requiring doctors get patient or family consent before withdrawing treatment from people facing a grim prognosis

Author of the article: Sharon Kirkey

The COVID-19 vaccine has started to be administered in Canada, but Ontario, Quebec and other provinces still need to prepare protocols to determine who should get critical care — and who should be left behind — in the event that hospitals become flooded with COVID patients. PHOTO BY CARLOS OSORIO/POOL/AFP VIA GETTY IMAGES

Canada’s Supreme Court ruled in 2013 that a major Toronto Hospital could not withdraw life-support from a minimally conscious and severely brain-damaged man without his family’s consent.

Now, in another sign of these extraordinary times, the Ontario government is being asked to temporarily suspend the law requiring doctors get consent of patients or families before withdrawing a ventilator or other life-sustaining treatment from people facing a grim prognosis, should COVID-19 crush hospitals.

The recommendation for an Executive Order to suspend the province’s Health Care Consent Act for withdrawal of treatment in the ICU, should the situation become so dire, comes as Ontario, Quebec and other provinces prepare protocols to determine who should get critical care — and who should be left behind — if hospitals are flooded with COVID patients.

The request, deeply disturbing to disability advocacy groups, comes from Ontario’s COVID-19 Bioethics Table, which is recommending that the province ensure “liability protection for all those who would be involved in implementing the Proposed Framework … including an Emergency Order related to any aspect requiring a deviation for the Health Care Consent Act.” The act requires doctors obtain agreement from patients, or their substitute decision makers, with disputes resolved by the Consent and Capacity Board, an independent tribunal.

This week, the Ontario Critical Care Covid Command Centre issued an “emergency standard of care” to prepare hospitals for the worst-case scenario, an Italy-like surge in demand for critical care. The over-arching objective, the document states, is to “save the most lives in the most ethical manner possible.”

A critical care triage should be considered an option of last resort, invoked only after all reasonable attempts have been made to move people to other hospitals where there is space and staff to care for them, and only for as long as the surge lasts, the document says.

The goal is to minimize deaths, minimize the risk of discrimination and “unconscious bias” against people with disabilities, racialized communities and other vulnerable groups, and minimize “moral injury and burnout” among staff forced to decide who may live and who may die.

According to the document, prepared on behalf of Ontario’s critical care COVID command centre, priority should be given to people with the greatest likelihood of surviving whatever it is that brought them to hospital — COVID-19, heart attack, liver disease, a bleed in the brain or other life-threatening illness. Those with a high likelihood of dying within 12 months from that critical sickness would receive lower priority for an ICU bed.

“It’s really important to be clear here — this is not about how long you’re likely to live, it’s not a life span question,” said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. “It’s your probability of being alive 12 months after developing critical illness.”

The protocol is meant to be applied to new patients, or people already in hospital whose condition is worsening. “We’re suggesting, out of a principle of fairness, the same approach should apply to people inside the ICU,” Downar said. “It would be unfair to treat people differently depending on the timing that they presented.”

“Nobody likes the idea of ever withdrawing life-support on somebody without their permission, without their consent,” Downar said. “But in a triage scenario, we’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole, and trying to maximize the number of people who will survive an overwhelming surge.”

Dr. James Downar: “We’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole.” PHOTO BY OTTAWA HOSPITAL RESEARCH INSTITUTE VIA CP

The document now being circulated to Ontario hospitals doesn’t include a provision for withdrawal of potentially life-sustaining treatment without consent. Instead, it says that ICU doctors should regularly reassess people admitted to ICU, and consider withdrawal of life support “through a shared decision-making process with SDMs (substitute decision-makers) if a patient does not appear to be improving.”

But Downar and other doctors said it’s not possible to operate a triage model in which all decisions are made with the consent and permission of people involved, because many people would simply opt out.

“We are going to say, ‘by the way, we are taking your family member off the ventilator in lieu of another patient who we feel has a better prognosis, given this pandemic condition. Do you agree?’ I think that if we did that we would not get consent. Nobody is going to give us consent,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

The Bioethics Table’s request is now before the Ontario Health Ministry. “We are hopeful that, as part of the state of emergency, should we need it, that there will be an executive order allowing us to withdraw,” Downar said

With an Executive Order in place, doctors could put off escalating triage and continue to offer intensive care to every person who might benefit, including borderline cases — “right up to the point that the critical care beds are literally full,” he said. ICUs could run at full capacity. Only then, as new patients come in who meet the triage criteria — a lower risk of death — and who need beds would ICU care slowly start to be withdrawn from people who aren’t responding and are least likely to, Downar said.

Without the Executive Order, triage would have to be started sooner, in order to reserve beds for people with a high likelihood of survival. Fewer people would be offered intensive care, and more people would die, Downar said.

“It’s difficult to imagine how troubling that would be, that we would actually have to suspend the consent act,” said Dr. Andrea Frolic, director of the Program for Ethics and Care Ecologies at Hamilton Health Sciences and a consultant to Ontario’s COVID critical care command centre.

“It would be a rare circumstance that we would have to resort to implementing a care plan that would not have the consent of the patient or substitute decision-maker,” Frolic said.

It’s not a life span question. It’s your probability of being alive 12 months after developing critical illness

But should hospitals become maxed out, with a massive surge of people coming through the doors who have a very high chance of survival, and people in the ICU who aren’t benefitting from critical care and who are highly likely to die — “if we don’t have the tool to provide equitable access to care, that will create a lot of distress on the system,” Frolic said.

It becomes a first-come, first-served system, she said — a car crash victim who needs surgery and a short ICU stay to save his life can’t get into the ICU, because he arrived after a person with end-stage cancer and COVID-related pneumonia who may not be likely to survive their critical illness, or weeks later. “That is a situation of inequity caused by fate, really, or chance. One person happened to get critically ill before another person.”

Withdrawing treatment without consent would be very rare, happen only after every effort to reach consensus with the patient and family has been exhausted, and only as a last resort, Frolic added.

Families who feel strongly could use all avenues of advocacy, she said. “The hope is that families will see what’s happening around them. You can imagine if we get to this level of surge, there are patients in hallways; there are patients in gymnasiums. My hope is that families will see their own patient deteriorating but will see the context that we’re in a public health emergency, that it’s not personal, it’s not what we wish to do, it’s a situation caused by the pandemic.”

Mariam Shanouda, a lawyer at ARCH Disability Law Centre in Toronto, said she was “flabbergasted” when told by the National Post about the prospect of an order to allow doctors to operate outside the consent act.

“This is literally life and death and to not only give doctors that power to operate outside (the act) but to insulate them from any liability whatsoever, that is not something to be taken likely,” Shanouda said.

“We don’t know the process by which these decisions will be made, who will be making the decisions to withdraw care. Is there going to be an appeal procedure whereby a family can challenge that decision? Is there going to be accountability?”

“There are huge legal questions here and they need to be discussed in the open because we are talking about possibly taking an active action that could accelerate someone’s death,” said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance (AODA).

“If they were to amend the consent legislation, and if that were valid, and if it were constitutional and if it got around all the criminal law problems, what will that mean? It means if anybody goes to hospital and gets intensive care, they don’t have any confidence they’re going to be able to stay there,” Lepofsky said.

“They’ve got to lie there knowing not only are they fighting for their life, but they are also aware that, at any time, a doctor could decide their chances aren’t so good, somebody coming in has got better chances, ‘sorry, we’re pulling the plug on you.’”

Globe and Mail January 20, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-how-doctors-in-quebec-ontario-will-decide-who-gets-care-if-coronavirus/

How doctors in Quebec, Ontario will decide who gets care if coronavirus hospitalizations continue to surge

LES PERREAUX

If the pandemic gets much worse in Canada’s hardest-hit provinces, grading systems developed by doctors and approved by provinces will help physicians decide who gets potential lifesaving treatment and who does not.

The purpose of the grading systems, filled with scores, scales and categories, is to establish a ranking of patients in need of critical care – including COVID-19 patients – with the aim of determining who will get access to increasingly scarce critical care beds, ventilators and ICU staff. The pandemic critical care triage protocol scores patients on severity of injury or illness, likelihood of immediate survival, and one-year prognosis beyond the intensive care unit.

Another objective, to limit bias and to depersonalize who will receive care, is spelled out at the top of each of the nine pages of the Quebec version of the Intensive Care Access Form. “Do not write the name,” it says.

“Our usual way to work is we treat the patient in front of us, one person at a time. This says we have to start thinking about what’s best for the largest number of people,” said Dr. Paul Warshawsky, chief of critical care at Montreal’s Jewish General Hospital. “It’s to help us select patients in a way that is fair and equitable, not based on how loudly a family is advocating.” Across the country, medical systems are already triaging tens of thousands of patients who need scheduled surgeries but must wait as COVID-19 taxes resources.

Intensive care triage is the next major step for hospital life-and-death decisions.

Critical care triage protocols are circulating in several provinces, including hard-hit Ontario and Alberta. Only Quebec has so far made its final triage form public, along with a 48-page explainer.

Ontario’s full, official protocol, similar to Quebec’s, is expected to be publicly released soon, according to Dr. James Downar, a specialist in critical care at The Ottawa Hospital who drafted Ontario’s protocol. It is not clear if Alberta will make its protocol public.

No Canadian medical system has had to invoke formal critical care triage during the pandemic. New York hospitals invoked “crisis standards of care” in the first wave, but doctors complained the triage guidelines were more theoretical than practical. They often ended up improvising who received care. Los Angeles County put protocols in place this month but has yet to formally start triage.

“If you run out of resources, you have three options: First-come first-serve, which is deeply unfair and brings a lot of extra mortality. A pure lottery random system has lower risk of inequity, but would lead to a lot of preventable death,” Dr. Downar said. “They’re not morally defensible.”

“You are left with option three: Try your very best to come up with criteria that can be applied consistently and explicitly, based on evidence. Avoid criterion that would assign value to a human being, but just assign probability they would live.”

If the protocol is invoked, doctors in Quebec would fill out the ICU access form for every patient in critical care or waiting for it. A team of two doctors and an ethicist for each hospital would receive them, rank patients and make the final calls.

The Quebec form would decide who gets into ICU but also who could be removed from ventilators if patients with a higher probability of survival need them.

It is not clear if Ontario’s final protocol will contain this piece.

In Quebec, the intensive care protocol is supposed to kick in once the province reaches 200 per cent of normal ICU capacity. Most ICUs in Quebec are not full, but some in Montreal are above 100 per cent. Critical patients in Toronto are being moved to hospitals across Southern Ontario.

“It’s scary, we’re not at the doorstep of the protocol but we’re near it,” Dr. Warshawsky said. The Jewish General ICU is “currently running at 130 per cent. I’m not sure we can get to 200 per cent.” Intensive care has two main functions when dealing with an influx of COVID-19 patients. One is constant monitoring – each nurse is in charge of no more than two patients in Quebec. The other is breathing assistance, where ventilators pump oxygen into a patient’s lungs.

Most intensive care triage plans set out three crisis stages. At the first stage, patients with only a 20 per cent chance or less of survival within a year would be denied intensive care. Two other stages with survival rates of 50 per cent and 70 per cent, respectively, kick in if the situation deteriorates.

Then, patients are sorted. In the Quebec form, physicians complete a trauma- and injury-severity score if the patient needs care for a major accident. With cardiac arrest, organ failure and metastatic cancer patients, a number of indicators are used for the first two stages. At stage three, the existence of these afflictions alone would prevent treatment in the ICU.

Patients over 60 years old with burns over 40 per cent or more of their bodies would be denied any ICU care.

The form’s final pages rank conditions that make recovery from assisted breathing less likely, such as dementia and frailty, raising alarm among disability advocates. Weight and muscle loss, diminished ability to walk are among clinical frailty symptoms.

“The tools they use conflate disability with frailty,” said Mariam Shanouda, a lawyer with the Toronto’s ARCH legal clinic, who represents people with disabilities. “We already know there are demographic sectors more affected by COVID-19. Black people, other racialized minorities, Indigenous people, people with disabilities … they will inevitably be most affected by this protocol and they have not been sufficiently consulted.”

The Quebec protocol was reviewed by committees involving dozens of medical professionals, lawyers and ethicists, but a handful of patients. “I don’t know why this wasn’t examined prior to the pandemic as part of pandemic preparedness,” said Vardit Ravitsky, a professor of bioethics at the University of Montreal.

“Public consultation on something involving life-and-death decisions like this should be as inclusive as possible.”

Judging frailty or dementia could discriminate against both the elderly and disabled, said David Lepofsky, chairman of advocacy group Accessibility for Ontarians with Disabilities Act Alliance. He warned the protocol will turn triage doctors “into a law unto themselves.”

Mr. Lepofsky, an adjunct professor at the University of Toronto’s law school, has written to Ontario Health Minister Christine Elliott to demand the protocol be scrapped and a process launched for a full debate and legislation. “They have had 11 months to figure this out,” Mr. Lepofsky said. “And they haven’t.”

Dr. Downar said the protocols “will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.”

Dr. Downar added doctors and nurses left with “impromptu triage practices” would create far greater risk of bias. But, he acknowledged, “even a system that controls subjectivity and implicit bias and is purely focused on mortality risk will still affect some groups more than others. Mortality risk is not evenly distributed in society.”

The final page of Quebec’s protocol outlines criteria for resolving ties, putting a priority on younger people and workers in the health care system, elements not part of Ontario’s draft protocol.

In both Ontario and Quebec, if all else is equal, random chance will be used for the final selection of critical care patients.

With a report from Jeff Gray in Toronto.

Undated Letter from A Member of the Ontario Government’s Critical Care COVID Command Centre to Ontario Hospitals

Ontario Critical Care COVID19 Command Centre_ Readiness for Emergency Standard of Care for Critical Care communication January 13 2021.pdf

Dear Colleagues:

Please find attached documents that describe how to implement an emergency standard of care for admission to critical care.

This emergency standard of care does not apply now. This will require a clear, distinct, and specific time of initiation and discontinuation by the Ontario Critical Care COVID19 Command Centre.

Matt Anderson, in his recent memo Further Actions for Optimizing Care, indicated that, “All hospitals are asked to review and standardize their critical care admission criteria in consultation with the Ontario Critical Care COVID-19 Command Centre”. The emergency standard of care (attached) is intended to support this action. It operates within the Health Care Consent Act of Ontario; it does not involve the protocol-driven withdrawal of invasive physiologic support, but does involve the protocol-driven decisions to not offer admission to critical care.

It would be advisable for physicians and your hospital to prepare now to operationalize this emergency standard for when it is initiated. While the forms are included in the document, they are attached here as separate pdfs for ease of printing. Furthermore, here is a site that contains these documents as well as a narrated slide deck for use with knowledge translation. This site can be referenced for updates to these documents and supplementary resources to support implementation.

Along with developing readiness for this change, I recommend concurrently refreshing a commitment to consistent and proactive approaches to goals of care conversations with patients. Some of the tools within this document may be useful in this regard.

Please note that on November 13, 2020, I sent a draft Protocol which does involve protocol-driven withdrawal of invasive physiologic support. This emergency standard of care document supersedes that draft protocol. The substantive differences between this document and the November 13, 2020 draft Protocol are:

  1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee; 3. No protocol-driven withdrawal of invasive physiologic support, which would require an executive order from Cabinet to operate outside of the Health Care Consent Act.

However, an updated version of the Protocol may be sent in the near future. Readiness of physicians and hospitals for an updated Protocol will be expedited by preparing to implement this emergency standard of care. The same principles and tools apply to both this Emergency Standard of Care and the forthcoming Protocol. Both approaches benefit from being derived from a Framework developed by the Ontario COVID-19 Bioethics Table. Both approaches emphasize a commitment to human rights, ethical principles, continuous improvement, and fair processes. A system of data collection about the application of this emergency standard of care is being created for the purpose of monitoring and revision of this approach. Information about how to transmit data to this system will be forthcoming soon.

Thank you so much for all you are doing,

Andrew Baker Incident Commander Ontario Critical Care COVID19 Command Centre



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