Ontario College of Physicians and Surgeons Creates More Confusion for Doctors and Patients, and Doesn’t Answer Key Questions About Disability Discrimination in Ontario Critical Care Triage Protocol


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

April 13, 2021

SUMMARY

Yet More Confusion Swirls Around Ontario’s Plans for Critical Care Triage

What on earth is really going on in the back rooms of the Ford Government to prepare for the terrifying possibility that Ontario hospitals may have to ration or “triage” life-saving critical care, if too many patients need critical care in order to stay alive? We are deeply indebted to our front-line health care professionals for their exhausting, hard work in the face of the current pandemic. However, we have real concerns about what is happening within the Ontario Government and the College of Physicians and Surgeons of Ontario CPSO (which regulates Ontario physicians).

From the January 23, 2021 webinar that was provided to train front-line doctors and hospitals for critical care triage, we discovered that the Ford Government has been in direct discussions with the health care sector, including with the insurance companies that insure hospitals and physicians for lawsuits for negligence and malpractice. We understand that the insurance company’s aim is to secure the maximum protection for doctors. Speaking for the Canadian Medical Protective Association (the insurance that covers physicians), Dr. Steven Bellemare said:

” And be aware that the CMPA is always working with governments and with HIROC which is the insurance company for the hospitals, about this issue. We’re in constant communication. We make representations on your behalf to make sure that if and when this goes into place, you’ll have the best protections possible.”

Last Friday, we learned the disturbing news that the CPSO had sent a mass email to all Ontario doctors. It appeared to give them the green light to use the disability-discriminatory Ontario critical care triage protocol, if the Government directs them that triage must occur. We agree that there should be a critical care triage protocol. However we object to any critical care triage protocol that discriminates based on disability. A triage protocol must be properly authorized by law and must be constitutional.

As we announced in the April 9, 2021 AODA Alliance Update, we immediately wrote the CPSO to raise serious concerns about its mass email. On Monday, April 12, 2021, we received a response from the CPSO. We set it out below. It does not allay any of our concerns. If anything, it creates more confusion for us, for the public and for physicians. We explained this in a follow-up letter we just sent to the CPSO. (Also set out below)

This again shows what we have been saying for months: Doctors who would follow the disability-discriminatory Ontario critical care triage protocol would do so at their peril. That protocol cannot be found on the Ford Government’s website, but you can find it on the AODA Alliance website!

Let’s put this picture together, from the perspective of the public, including patients with disabilities. The Ford Government is evidently considering the possibility of agreeing in advance to indemnify doctors who ration or triage critical care, using the controversial and seriously-flawed Ontario critical care triage protocol. If the Ford Government does this, and if a patient is denied critical care they need in accordance with the Ontario critical Care triage protocol, and dies as a result, the Government would pay claims made against the doctor. That would be a huge public subsidy or corporate welfare for the physicians’ insurance company, at the taxpayers’ expense.

At the same time, the CPSO is signaling doctors that it supports their using the Ontario critical care triage protocol, if triage is directed, even though we, other disability advocates and the Ontario Human Rights Commission raised serious disability discrimination objections to it. The CPSO is supposed to fairly and impartially rule on complaints that patients or their families make against physician misconduct, without prejudging issues in advance.

Taken together, this means that the signal to doctors from the Government and the CPSO would be this: Don’t worry about being sued or about a complaint against you being filed with the CPSO, if you use the Ontario critical care triage protocol. You have the maximum protection for any accountability. No one should get such carte blanche and such a blank cheque in advance, especially when deciding who lives and who dies.

The Ford Government appears to be in regular contact with the doctors’ insurance company. However the Health Ministry won’t talk to us or even answer our letters on critical care triage.

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

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

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

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

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

MORE DETAILS

April 12, 2021 Email from College of Physicians and Surgeons of Ontario to AODA Alliance

Dear Mr. Lepofsky,

Thank you very much for your letter and taking the time to share your concerns with us. As Director of Policy here at CPSO, I’m responding on behalf of Dr. Whitmore (cc’d).

As I’m sure you can imagine, this is an extremely challenging time for all involved and we sent a message to the profession late last week in an effort to acknowledge and support the work of physicians as they face the realities of practice in a pandemic head on. While CPSO has had the opportunity to provide some input into the development of the critical care triage tool, we are not ultimately responsible for deciding it’s final structure, how it will be used, or even whether it will be implemented. Of particular note, we are not able to and have been clear that we cannot grant physicians permission to withdraw life-sustaining treatment that is already being provided and that provincial level decisions would be needed to enable this practice should it ever reach that point. The letter we sent to physicians last week and the information we have communicated on our website was something we felt was very necessary, given the escalating trajectory of the pandemic and how quickly our system is being overwhelmed.

This is a difficult time for everyone for patients, for families, for physicians, and for all other health care providers and we know that no one wants to reach a point where making these types of allocation decisions is necessary. Our role is to serve the public interest and with the tremendous threat to our capacity to treat all patients requiring critical care resources looming, it was essential that we take the steps needed to ensure physicians know that we recognize the unprecedented challenges they may soon face so that they can support the system wide response needed to help save as many lives as possible and protect the public interest. We will continue to watch and respond to the evolving nature of the pandemic, with the hope that the measures being taken are sufficient to reduce the pressure on our critical care divisions.

Thank you again for your letter.

Best regards,

Craig Roxborough, PhD (he/him)
Director | Policy
College of Physicians and Surgeons of Ontario
80 College Street | Toronto, Ontario | M5G 2E2
T: 416-967-2600 | 1-800-268-7096 ext. 339
www.cpso.on.ca
TRUSTED DOCTORS PROVIDING GREAT CARE

April 13, 2021 AODA Alliance Letter to the College of Physicians and Surgeons of Ontario

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

April 13, 2021

Dr. Nancy Whitmore, Registrar and CEO
Via email: [email protected]; [email protected]

College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

Dear Dr. Whitmore,

Re: Possibility of Rationing or Triage of Critical Care in Ontario

We are responding to the April 12, 2021 letter we received from Craig Roxborough, Director of Policy for the College of Physicians and Surgeons of Ontario (CPSO). He responded on your behalf to our April 9, 2021 letter to you, where we raised serious concerns about a mass email that the CPSO evidently sent all Ontario physicians last week. That mass email gave the CPSO’s approval to doctors using the Ontario critical care triage protocol, if rationing or triage of life-saving critical care becomes necessary due to hospital overloads.

We regret that Dr. Roxborough’s letter did not answer key questions and concerns we presented in our April 9, 2021 letter to you. For the benefit of the public who can become critical care patients, and the physicians whom the CPSO regulates, it is important for those questions to be answered and those concerns to be addressed. Otherwise, both Ontario physicians and the public will be left in confusion at a time when clarity from the CPSO is especially important.

We asked you if the text we set out in our April 9, 20921 letter to you is an accurate quotation of what the CPSO sent to all Ontario physicians last week about the critical care triage issue. Dr. Roxborough did not answer. We will proceed on the basis that it is accurate, unless you tell us otherwise.

Dr. Roxborough indicated that the CPSO’s email to all Ontario physicians last week was sent “in an effort to acknowledge and support the work of physicians as they face the realities of practice in a pandemic head on” and “to ensure physicians know that we recognize the unprecedented challenges they may soon face so that they can support the system wide response needed to help save as many lives as possible and protect the public interest.” However, the CPSO’s email to all Ontario physicians last week went much further than simply assuring physicians that the CPSO acknowledges and supports their work during the pandemic and recognizes the unprecedented challenges they may face.

The CPSO’s email to all doctors explicitly and categorically gives them the green light to act in accordance with the Ontario critical care triage protocol. That mass email asked this direct question:

“If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?”

The CPSO email to all Ontario physicians gives this clear and categorical answer to that question:

“Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols.”

Beyond that, our April 9, 2021 letter to you explained that we, the Ontario Human Rights Commission and others have raised serious disability discrimination and other human rights objections with the Ontario critical care triage protocol. In the face of such concerns, it would be wrong for the CPSO to green light for physicians in advance the use of that protocol. In our April 9, 2021 letter to you, we asked to meet with the CPSO to discuss this. Dr. Roxborough’s April 12, 2021 response did not address or even acknowledge those concerns or that request. He did not respond to our request to meet with the CPSO about this.

As another concern, Dr. Roxborough’s April 12, 2021 letter to us suggests that the CPSO has been clear that it cannot grant physicians permission to withdraw life-saving critical care from a patient that is already being provided to a patient, and that this is for the Province to decide. His April 12, 2021 letter to us states:

“Of particular note, we are not able to and have been clear that we cannot grant physicians permission to withdraw life-sustaining treatment that is already being provided and that provincial level decisions would be needed to enable this practice should it ever reach that point.”

Yet adding to the confusion, Ontario physicians can get a very different impression from the email that the CPSO sent all physicians last week. That mass email appears to green light a physician’s withdrawal of life-saving critical care from a patient, if the Ontario Government legalizes it and if it is done in accordance with the Ontario critical care triage protocol. Once again, with our emphasis added, that mass email began with this question:

“If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?”

Later, that mass email makes it clear that if the province authorizes withdrawal of critical care from a patient, then the CPSO is green lighting a doctor doing so, so long as the physician follows the Ontario critical care triage protocol. Once again, the CPSO mass email states:

“While only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to re-allocate those resources to another patient, the College recognizes that issues concerning withholding potentially life-saving or life-sustaining treatments may also arise.

Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols.”

If the Ontario Government were to purport to amend legislation to permit a doctor to withdraw life-saving critical care from a patient without their consent, that does not automatically make such withdrawal of care over a patient’s objection lawful and appropriate. This is especially so, since there are serious problems of disability discrimination in the Ontario critical care triage protocol (among other serious problems). Should a physician withdraw life-saving critical care from a patient who does not consent to its withdrawal, and should the patient die as a result, the CPSO should not pre-judge in advance that just because the doctor acted in accordance with the Ontario critical care triage protocol, a complaint to the CPSO would be viewed unfavourably.

Dr. Roxborough’s April 12, 2021 letter to us did not answer our inquiry to you about what specific input, if any, the College has received regarding our disability concerns, and what input, if any, the College gave the Ontario Government about disability concerns with the critical care triage plans. We hope and trust that the CPSO would be willing to share that information, given your commitment to public accountability and the exceptional urgency of the critical care triage issue.

In sum, physicians and the public will be left in further confusion from Dr. Roxborough’s April 12, 2021 letter to us. This makes it all the more pressing for the CPSO to meet with us and other advocates from the disability community. We repeat that physicians who act pursuant to Ontario’s critical care triage plan and protocol do so at their peril.

We would very much welcome the opportunity to work with the CPSO to help ensure that its approach to this deeply troubling and difficult issue fully complies with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Please give us the chance to do so. If CPSO has not already done so, we strongly urge you to work directly with the Ontario Human Rights Commission on these concerns. The Commission is a fellow public agency with expertise in preventing and removing disability discrimination. It has been actively engaged in the critical care triage issue.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance Twitter: @davidlepofsky

cc:
Premier Doug Ford [email protected]
Christine Elliott, Minister of Health, [email protected] Helen Angus, Deputy Minister of Health [email protected] Raymond Cho, Minister of Seniors and Accessibility [email protected]
Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]
Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]
Todd Smith, Minister of Children, Community and Social Services [email protected]
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]
Craig Roxborough, Director of Policy, College of Physicians and Surgeons of Ontario Craig Roxborough [email protected]
Robert Lattanzio, Executive Director, ARCH Disability Law Centre [email protected]




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One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry


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/

March 29, 2021

SUMMARY

It was one year ago yesterday that the Ford Government secretly sent Ontario hospitals a deeply-flawed critical care triage protocol, directing how hospitals should decide who will be refused life-saving critical care if hospitals get overloaded by the COVID-19pandemic. It was one year ago next week that the disability community learned of this, and made public the fact that the Governments critical care triage protocol discriminates against some patients with disabilities.

Where are we one year later? The COVID-19 pandemic is still upon us. Despite the good news of COVID-19 vaccines, waves of new infections continue to push Ontarios hospitals to the limit. The risk of Ontario having to ration critical care remains a real one.

As well, one year later, the Ford Government wrongly continues to deal with this issue in secret, and without itself consulting the public or making public what it is doing. It continues to deny responsibility in this area, sloughing it off on the medical profession. It continues to sit back while an updated critical care triage protocol is in place, that would continue to discriminate against some patients with disabilities.

Oddly, the health care web page of the AODA Alliance website continues to be the best, if not the only place to go to find public copies of important documents in this area, such as Ontarios January 13, 2021 Critical Care Triage Protocol, and the September 11, 2020 report of the Governments Bioethics Table. News reporters continue to tell us that they cannot get straight answers, and at times, cannot get any answers at all, from the Ford Government on this critical care triage issue.

Even though too many news outlets have failed to give this issue the attention it deserves, there have been a few recent and important news reports. Below, we set out:

* The March 29, 29, 2021 Globe and Mail report on the critical care triage issue;

* The February 7, 2021 Globe and Mail report on the critical care triage issue; and

* The February 8, 2021 Lawyers Daily report on broader health care barriers facing people with disabilities during COVID-19, which situates the critical care triage discrimination against some patients with disabilities into that broader issue.

We offer four reflections on those reports:

1. The cruel irony has not been lost on many people with disabilities that at the same time as people with disabilities must battle against the life-threatening dangers facing them if Ontario undertakes critical care triage, disability advocates have also been campaigning against Bill C-7, controversial new federal legislation that substantially liberalizes medical assistance in dying. There has been this increased governmental focus on ending the lives of people with disabilities, without comparable governmental efforts to improve the opportunities for living with a disability.

2. As the Government itself hides, Dr. James Downar continues in effect to play the role of the Governments chief defender on this critical care triage issue. He appears indistinguishable from a cabinet ministers spokesperson. He has been credited with being an author, if not the key author, of the January 13, 2021 Critical Care Triage Protocol which embodies seriously harmful disability discrimination. As a member of the Governments advisory Bioethics Table, he was a key player during a series of virtual meetings last summer, where the AODA Alliance and certain other disability advocates and experts voiced concerns in this area.

Dr. Downars statements in the Governments defence in the March 29, 2021 article below constitute a seriously erroneous rejection of key points of input we presented to him and his Bioethics Table colleagues on these disability issues. That article states:

He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.

Whether or not the critical care triage protocol was intended as he stated, we and other disability advocates have shown that the protocol has the clear effect of discriminating because of disability. It is the effect of the protocol and not its intent that determines whether it is a violation of the Charter of Rights and/or the Ontario Human Rights Code. Dr. Downars defence provides no defence.

3. Both Globe and Mail articles report on advocacy by some doctors to be given the power to pull the plug on critical care patients over their objection, taking away critical care they are already receiving, and thereby endangering their life. No one has answered our objection that Ontario cannot authorize this without the doctor running up against Canadas Criminal Code homicide provisions. This piles onto vulnerable people with disabilities yet another danger to their lives, during a pandemic where they have disproportionately been at risk of getting COVID-19and dying from it.

4. The Globe and Mails February 7, 2021 article quotes a bioethicist in defence of the January 13, 2021 Critical Care Triage Protocol, who claims it is designed to protect human rights. The title bioethicist implies great expertise in this area. However, there is cause for concern.

There is no public regulation of who can call themselves a bioethicist. There appears to be no self-governing body for bioethicists, and no code of ethics for bioethicists. We have learned through the critical care triage issue that a person does not need to have any training in law or human rights, to call themselves a bioethicist. Indeed, some make statements on basic constitutional and human rights that reflect a demonstrable lack of knowledge in these important areas.

For more background in this area, check out the AODA Alliances health care web page. Also, check out the AODA Alliances February 25, 2021 report entitled: A Deeply Troubling Issue of Life and Death — An Independent Report on Ontarios Seriously-Flawed Plans for Rationing or Triage of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals.

MORE DETAILS

Globe and Mail March 29, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-covid-19-surge-could-force-doctors-to-use-online-calculator-to/ Ontario’s COVID-19 triage plan includes online care calculator

By JEFF GRAY
Staff
If COVID-19’s surging third wave overwhelms Ontario’s hospitals, doctors could soon be forced to use an emergency triage protocol that includes an online calculator to help decide who gets lifesaving care and who does not.

The website, which prompts physicians to key in a critical patient’s diagnosis in order to estimate their chances of survival, is part of an emergency procedure drafted to help doctors make what would normally be unthinkable decisions. The protocol has been distributed to hospitals. But it has never officially been made public.

The province has loosened some pandemic restrictions in recent weeks, even as daily new infections still shoot upward, with more than 2,448 recorded on Sunday and 19 deaths. Ontario counted 390 COVID-19 patients in its intensive-care units, not far from the peak of 420 hit in the second wave of the virus in January.

While the provincial government says it has added hospital capacity, the Ontario Hospital Association warned last Friday that the province’s critical-care system was reaching its “saturation point” and that soon “hospitals will be under extraordinary pressure to try and ensure equitable access to lifesaving critical care.”

To deal with the onslaught, ICUs have been transferring critical patients from packed facilities to those elsewhere that still have space. Patients are being shipped via ambulance helicopter from Toronto to as far away as Kingston. Field hospitals have also sprung up around several health care facilities, including Toronto’s Sunnybrook Health Sciences Centre.

But more than a year into a pandemic that put hospitals in New York and Italy over the brink, the Ontario government has kept almost all planning for such a worst-case scenario out of the public eye.

By contrast, Quebec held open consultations on its emergency triage protocol months ago.

Meanwhile, the Ontario Human Rights Commission and disability rights groups have raised objections for months, warning that leaked drafts of Ontario’s protocol discriminate unfairly against older and disabled people.

Both a January version of the protocol, developed by the group that co-ordinates critical care across the province, and the online calculation tool have only come to light after being obtained by the Accessibility for Ontarians with Disabilities Act Alliance, a disability rights group.

The AODAA has also obtained a “framework document,” prepared by the government’s bioethics table, a committee of experts that has been wrestling with the triage issue for the past year.

The province’s Ministry of Health has said only that the triage protocol, known as an “emergency standard of care,” was drafted by the medical profession and not approved by the ministry.

The notion of an online triage aide may sound strange, but nothing about hospitals swamped by COVID-19 would be normal. The “short-term mortality risk” calculator would allow physicians to type data on the severity of a patient’s conditions – cancer, trauma, stroke and so on –
to help come up with an estimated chance of survival after 12 months. Those with a higher chance of survival would be given priority for ICU spots. Decisions would be made by two doctors, not one alone.

David Lepofsky, a lawyer and chairman of the AODAA, said it’s the wrong approach.

“It creates the false impression that this can be an objective [task]. Just type in the data, press the button, the computer will tell you who lives and who dies,” Mr. Lepofsky said in an interview.

He takes issue with the protocol’s reliance on a metric for use on those over 65 known as the clinical frailty scale, which measures a patient’s ability to perform various everyday tasks.

That, he argues, devalues the lives of disabled people.

James Downar, a specialist in critical care at The Ottawa Hospital and a drafter of the triage plan who sits on the province’s bioethics table, said the online calculator is no different than the paper version that doctors can also use under the protocol.

He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.

“None of us want to be in a triage scenario,” Dr. Downar said.

“The purpose of a triage system is to reduce the number of preventable deaths and reduce the number of people who are denied critical care.”

Dr. Downar said he believed it would be best to make the triage plans public.

A spokeswoman for Ontario Health Minister Christine Elliott referred questions about the protocol to Jennifer Gibson, the cochair of the government’s bioethics table and director of the University of Toronto Joint Centre for Bioethics.

Dr. Gibson said the bioethics table has been in discussions with the Ontario Human Rights Commission on addressing its concerns with the triage protocol.

She also said the table has previously recommended an open public consultation on the triage issue – but that the government had so far not acted on this idea.

“We provide advice. And that advice may be taken or it may not be taken,” Dr. Gibson said.

Even with ICUs at a tipping point, Dr. Gibson said she didn’t think it was too late to start a more open discussion of the issues at stake, to build public trust.

Earlier this month, the chief commissioner of Ontario’s Human Rights Commission, Ena Chadha, wrote to Ms. Elliott to reiterate concerns about the protocol, the potential for discrimination against the disabled and a lack of consultation and transparency around it. Ms. Chadha and other groups have been at odds with the government over the issue since last March.

“We have to develop a framework that is equitable, with human-rights considerations being paramount. Which means it can’t be built on ageist or ableist notions, or assumptions about quality of life,” she said. “This is the problem.”

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said ICU doctors have been familiarized with the emergency triage protocol – even though the government says it remains unapproved – and that committees at hospitals across the province to oversee it have been set up. He held up a paper triage form in a Twitter video on Friday, urging Premier Doug Ford to tighten public-health measures.

He also criticized the government for so far declining to say it would, if needed, issue an order to override Ontario’s health care legislation and allow for the withdrawal of lifesaving care from patients already in the ICU who are unlikely to survive. Under the plan as it stands now, only new patients would face ICU triage.

It’s unclear, Dr. Warner warned, how the plans would roll out in what would be an unprecedented crisis.

“This could be battlefield medicine,” he said. “We may end up having to improvise.”

The Globe and Mail February 7, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontarios-life-and-death-emergency-triage-protocol-remains-a-work-in/

News

Ontario’s life-and-death triage protocol still in progress

By JEFF GRAY
Staff
If a third wave of COVID-19 overwhelms Ontario hospitals, and intensive care units run out of beds, the province’s doctors could be forced to make previously unthinkable decisions about who gets access to life-saving treatment. Precisely how they would do that remains largely under wraps even as concern mounts about the spread of more contagious new variants of the virus.

Ontario has cancelled procedures, added beds and helicoptered patients from hotspots to less-crowded hospitals to avoid the worst. But its contingency planning for how doctors would cope with an uncontainable COVID-19 surge has occurred largely behind closed doors. That has raised alarms with disability rights activists and the Ontario Human Rights Commission, who warn hospital triage protocols must guard against discrimination.

Meanwhile, some doctors say a draft “emergency standard of care” distributed to hospitals last month – but not publicly released – does not go far enough.

They say it lacks a grim but necessary provision: The power to unplug patients who are unlikely to survive from life support without consent to make room for those with a better chance.

Not allowing this kind of triage, some doctors argue, could create a kind of first-come, firstserved system, in which patients who might have lived are denied access to scarce ICU beds because others who have little hope already occupy them. More people, they say, would end up dying.

The problem is a legal one. In Ontario, removing life support without the consent of the patient or their next of kin or designated decision maker has been barred since the Supreme Court of Canada decision ruled in 2013 that the province’s Health Care Consent Act applies to both providing and withdrawing care.

The decision did not affect other provinces.

Quebec’s triage protocol, which has been made public, would allow doctors to apply a set of criteria to remove patients from life support without consent if needed. Other jurisdictions, including New York, have had to invoke triage protocols, formal or informal, to deal with tidal waves of COVID-19 cases.

Ontario’s COVID-19 bioethics table, made up of critical-care doctors and academics, recommended in a September “framework” document that the government issue an emergency order “related to any aspect [of the triage plans] requiring a deviation from the Health Care Consent Act.” It also called for an order to provide liability protection for doctors. The document laid out the principles for triaging patients in a COVID-19 surge.

In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.”

The draft emergency standard of care distributed to hospitals would classify new patients needing life support based on how likely they are to survive for 12 months. But those already inside the ICU, no matter how small their chance of recovery, would stay put.

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said the government has to issue an emergency order to fix an unfair triage plan that would leave more people dead. But he said he realizes politicians would rather not confront the issue before it is necessary: “I understand that this is a nuclear football for any government.”

Last month, with more than 400 COVID-19 patients in ICUs across the province, hospitals raised frantic alarms. But with the recent slowdown in infections, numbers have declined.

On Friday, the province said it had 325 patients in its ICUs with the virus.

Critics say Ontario is wrong to keep the life-and-death deliberations quiet. Disability rights activists obtained leaked copies of the framework and the proposed standard of care and posted them online. Neither of the cochairs of the bioethics table responded to requests for comment for this article.

“That’s just the way Doug Ford likes to do things, behind closed doors, and in secret,” Opposition NDP Leader Andrea Horwath said. “But on something like this, literally life-and-death decisions … there’s just no excuse to not make these kinds of policy decisions the result of massive engagement with Ontarians.”

Disability rights activists say the current proposal would discriminate against the disabled.

Some hold that doctors should never remove a patient from life support without consent.

“That is a point that we shouldn’t have to get to,” said Mariam Shanouda, a lawyer with the ARCH Disability Law Centre, who argues the government must do more to ensure such drastic measures are never needed.

David Lepofsky, a lawyer and chairman of the Accessibility for Ontarians with Disabilities Act Alliance, said the triage protocol lacks an arm’s-length process to appeal decisions, which doctors say is not compatible with acting quickly in a crisis. He also questions the government’s legal authority to issue an emergency order that would allow doctors to remove a patient from life support without consent.

“Any doctor that would consider doing this, I hope they’ve got a lawyer,” Mr. Lepofsky said.

Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.

Dr. Frolic said the government needs to assure ICU doctors that the protocol and an emergency order are in place long before infections begin to spike again, so that doctors – and the public – are prepared: “That’s not necessarily something that can turn on overnight.”

The Lawyer’s Daily February 8, 2021

Originally posted at https://www.thelawyersdaily.ca/articles/24331/research-project-seeks-to-understand-covid-19-justice-barriers-for-people-who-live-with-disabilities Research project seeks to understand COVID-19 justice barriers for people who live with disabilities
Researchers at a western Canada university have embarked on studies into how measures to combat COVID-19 have impacted access to justice for Ontarians with disabilities living in care centres and people with mental disorders in British Columbias prisons and psychiatric facilities.

Thompson Rivers University (TRU) law professor Dr. Ruby Dhand is one of the researchers who in January launched the two projects. Each is being run in collaboration with various legal and advocacy groups. The goal, to use legal and scientific research to promote legislative change.

The Ontario project, Dhand told The Lawyers Daily, will also involve a TRU science professor and a law professor from the University of Windsor and will be run in collaboration with the Toronto-based ARCH Disability Law Centre (ARCH).

According to a description on a TRU webpage, the project will examine COVID-19 barriers to justice for those who live with disabilities in these congregate care settings, such as long-term care homes, group homes and assisted living facilities.

Dhand said restrictions put in place to combat the health crisis have resulted in a lack of care, community supports and communication devices, as well as fallout from visitor bans and reductions in standard services.

Weve recognized that people with disabilities, as this pandemic has evolved, who are living in congregate care settings have really been disproportionately impacted, said Dhand. Its become clear that over 80 per cent of these COVID-19 related deaths have occurred in these long-term care facilities. They are experiencing complex forms of discrimination.

[The] purpose of this research to highlight those voices, because this will be a quotative, multidisciplinary research project. We recognize that, throughout this pandemic, the voices of people with disabilities have really be silenced, and it doesnt seem like theyve been prioritized.

Dhand also talked about the controversial emergency triage protocol put together by the province, which would reportedly allow doctors in intensive care units to decide who gets a bed and who doesnt in the event hospitals become overwhelmed by the health crisis.

A clear access to justice issue has also been Ontarios triage protocols, Dhand said. As a result of the triage protocols, a person with a disability will be deprioritized. The protocols state that they will be deprioritized for a ventilator [if their] future quality of life is determined to be poor because of their disability. So, disability advocates have raised concerns about the discriminatory impact of the triage protocols on people with disability in congregate care settings. Access to health care is an access to justice issue.

In January, ARCH issued a statement about possible temporary suspensions to Ontario health-care legislation that would effectively permit doctors to withdraw treatment from a patient without the consent of the patient or family if hospitals end up having more patients than resources. This would accompany the provinces triage protocol, ARCH goes on to state.

The Accessibility for Ontarians With Disabilities Act Alliance recently said that such a thing would be like recklessly tap-dancing in a constitutional minefield.

Dhand hopes the research she and the others conduct will help prompt legislative change.

This proposed partnership comes at a critical moment in ARCHs advocacy efforts, and we want to be able to help; we want to be able to have this research create disability-informed responses to the pandemic and post-pandemic planning.

Turning to the second research project, Dhand says this B.C.-based initiative is examining COVID-19 transmission risks and barriers to justice for those being detained in the provinces mental health facilities, prisons and detention centres.

It is in collaboration with a number of community organizations, including the West Coast Justice Society and the Elizabeth Fry Society.

People with mental health and substance use issues who are in mental health facilities and prisons and detention centres have an increased potential of death, said Dhand. They experience much higher likelihood of getting COVID-19 because these are congregate care facilities, where people live in crowded and confined spaces with high transmission risk. And there is also a lack of resources [and] a lack of [personal protective equipment]. And people with mental health and substance use issues have already pre-existing health issues and vulnerabilities.

Dhand said they can also experience consent and capacity issues and, in some cases, may not even understand what the public health measures mean.

She also cites a lack of community-based care and diversion options and an increase in the use of solitary confinement and lockdowns since the start of the pandemic.

Both projects will run for up to two years, Dhand said.




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One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry


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/

One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry

March 29, 2021

            SUMMARY

It was one year ago yesterday that the Ford Government secretly sent Ontario hospitals a deeply-flawed critical care triage protocol, directing how hospitals should decide who will be refused life-saving critical care if hospitals get overloaded by the COVID-19pandemic. It was one year ago next week that the disability community learned of this, and made public the fact that the Government’s critical care triage protocol discriminates against some patients with disabilities.

Where are we one year later? The COVID-19 pandemic is still upon us. Despite the good news of COVID-19 vaccines, waves of new infections continue to push Ontario’s hospitals to the limit. The risk of Ontario having to ration critical care remains a real one.

As well, one year later, the Ford Government wrongly continues to deal with this issue in secret, and without itself consulting the public or making public what it is doing. It continues to deny responsibility in this area, sloughing it off on the medical profession. It continues to sit back while an updated critical care triage protocol is in place, that would continue to discriminate against some patients with disabilities.

Oddly, the health care web page of the AODA Alliance website continues to be the best, if not the only place to go to find public copies of important documents in this area, such as Ontario’s January 13, 2021 Critical Care Triage Protocol, and the September 11, 2020 report of the Government’s Bioethics Table. News reporters continue to tell us that they cannot get straight answers, and at times, cannot get any answers at all, from the Ford Government on this critical care triage issue.

Even though too many news outlets have failed to give this issue the attention it deserves, there have been a few recent and important news reports. Below, we set out:

* The March 29, 29, 2021 Globe and Mail report on the critical care triage issue;

* The February 7, 2021 Globe and Mail report on the critical care triage issue; and

* The February 8, 2021 Lawyer’s Daily report on broader health care barriers facing people with disabilities during COVID-19, which situates the critical care triage discrimination against some patients with disabilities into that broader issue.

We offer four reflections on those reports:

  1. The cruel irony has not been lost on many people with disabilities that at the same time as people with disabilities must battle against the life-threatening dangers facing them if Ontario undertakes critical care triage, disability advocates have also been campaigning against Bill C-7, controversial new federal legislation that substantially liberalizes medical assistance in dying. There has been this increased governmental focus on ending the lives of people with disabilities, without comparable governmental efforts to improve the opportunities for living with a disability.
  1. As the Government itself hides, Dr. James Downar continues in effect to play the role of the Government’s chief defender on this critical care triage issue. He appears indistinguishable from a cabinet minister’s spokesperson. He has been credited with being an author, if not the key author, of the January 13, 2021 Critical Care Triage Protocol which embodies seriously harmful disability discrimination. As a member of the Government’s advisory Bioethics Table, he was a key player during a series of virtual meetings last summer, where the AODA Alliance and certain other disability advocates and experts voiced concerns in this area.

Dr. Downar’s statements in the Government’s defence in the March 29, 2021 article below constitute a seriously erroneous rejection of key points of input we presented to him and his Bioethics Table colleagues on these disability issues. That article states:

“He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.”

Whether or not the critical care triage protocol was intended as he stated, we and other disability advocates have shown that the protocol has the clear effect of discriminating because of disability. It is the effect of the protocol and not its intent that determines whether it is a violation of the Charter of Rights and/or the Ontario Human Rights Code. Dr. Downar’s defence provides no defence.

  1. Both Globe and Mail articles report on advocacy by some doctors to be given the power to pull the plug on critical care patients over their objection, taking away critical care they are already receiving, and thereby endangering their life. No one has answered our objection that Ontario cannot authorize this without the doctor running up against Canada’s Criminal Code homicide provisions. This piles onto vulnerable people with disabilities yet another danger to their lives, during a pandemic where they have disproportionately been at risk of getting COVID-19and dying from it.
  1. The Globe and Mail’s February 7, 2021 article quotes a bioethicist in defence of the January 13, 2021 Critical Care Triage Protocol, who claims it is designed to protect human rights. The title “bioethicist” implies great expertise in this area. However, there is cause for concern.

There is no public regulation of who can call themselves a bioethicist. There appears to be no self-governing body for bioethicists, and no code of ethics for bioethicists. We have learned through the critical care triage issue that a person does not need to have any training in law or human rights, to call themselves a bioethicist. Indeed, some make statements on basic constitutional and human rights that reflect a demonstrable lack of knowledge in these important areas.

For more background in this area, check out the AODA Alliance’s health care web page. Also, check out the AODA Alliance’s February 25, 2021 report entitled: “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals”.

            MORE DETAILS

Globe and Mail March 29, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-covid-19-surge-could-force-doctors-to-use-online-calculator-to/

Ontario’s COVID-19 triage plan includes online care calculator

By JEFF GRAY

Staff

If COVID-19’s surging third wave overwhelms Ontario’s hospitals, doctors could soon be forced to use an emergency triage protocol that includes an online calculator to help decide who gets lifesaving care and who does not.

The website, which prompts physicians to key in a critical patient’s diagnosis in order to estimate their chances of survival, is part of an emergency procedure drafted to help doctors make what would normally be unthinkable decisions. The protocol has been distributed to hospitals. But it has never officially been made public.

The province has loosened some pandemic restrictions in recent weeks, even as daily new infections still shoot upward, with more than 2,448 recorded on Sunday and 19 deaths. Ontario counted 390 COVID-19 patients in its intensive-care units, not far from the peak of 420 hit in the second wave of the virus in January.

While the provincial government says it has added hospital capacity, the Ontario Hospital Association warned last Friday that the province’s critical-care system was reaching its “saturation point” and that soon “hospitals will be under extraordinary pressure to try and ensure equitable access to lifesaving critical care.”

To deal with the onslaught, ICUs have been transferring critical patients from packed facilities to those elsewhere that still have space. Patients are being shipped via ambulance helicopter from Toronto to as far away as Kingston. Field hospitals have also sprung up around several health care facilities, including Toronto’s Sunnybrook Health Sciences Centre.

But more than a year into a pandemic that put hospitals in New York and Italy over the brink, the Ontario government has kept almost all planning for such a worst-case scenario out of the public eye.

By contrast, Quebec held open consultations on its emergency triage protocol months ago.

Meanwhile, the Ontario Human Rights Commission and disability rights groups have raised objections for months, warning that leaked drafts of Ontario’s protocol discriminate unfairly against older and disabled people.

Both a January version of the protocol, developed by the group that co-ordinates critical care across the province, and the online calculation tool have only come to light after being obtained by the Accessibility for Ontarians with Disabilities Act Alliance, a disability rights group.

The AODAA has also obtained a “framework document,” prepared by the government’s bioethics table, a committee of experts that has been wrestling with the triage issue for the past year.

The province’s Ministry of Health has said only that the triage protocol, known as an “emergency standard of care,” was drafted by the medical profession and not approved by the ministry.

The notion of an online triage aide may sound strange, but nothing about hospitals swamped by COVID-19 would be normal. The “short-term mortality risk” calculator would allow physicians to type data on the severity of a patient’s conditions – cancer, trauma, stroke and so on – to help come up with an estimated chance of survival after 12 months. Those with a higher chance of survival would be given priority for ICU spots. Decisions would be made by two doctors, not one alone.

David Lepofsky, a lawyer and chairman of the AODAA, said it’s the wrong approach.

“It creates the false impression that this can be an objective [task]. Just type in the data, press the button, the computer will tell you who lives and who dies,” Mr. Lepofsky said in an interview.

He takes issue with the protocol’s reliance on a metric for use on those over 65 known as the clinical frailty scale, which measures a patient’s ability to perform various everyday tasks.

That, he argues, devalues the lives of disabled people.

James Downar, a specialist in critical care at The Ottawa Hospital and a drafter of the triage plan who sits on the province’s bioethics table, said the online calculator is no different than the paper version that doctors can also use under the protocol.

He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.

“None of us want to be in a triage scenario,” Dr. Downar said.

“The purpose of a triage system is to reduce the number of preventable deaths and reduce the number of people who are denied critical care.”

Dr. Downar said he believed it would be best to make the triage plans public.

A spokeswoman for Ontario Health Minister Christine Elliott referred questions about the protocol to Jennifer Gibson, the cochair of the government’s bioethics table and director of the University of Toronto Joint Centre for Bioethics.

Dr. Gibson said the bioethics table has been in discussions with the Ontario Human Rights Commission on addressing its concerns with the triage protocol.

She also said the table has previously recommended an open public consultation on the triage issue – but that the government had so far not acted on this idea.

“We provide advice. And that advice may be taken or it may not be taken,” Dr. Gibson said.

Even with ICUs at a tipping point, Dr. Gibson said she didn’t think it was too late to start a more open discussion of the issues at stake, to build public trust.

Earlier this month, the chief commissioner of Ontario’s Human Rights Commission, Ena Chadha, wrote to Ms. Elliott to reiterate concerns about the protocol, the potential for discrimination against the disabled and a lack of consultation and transparency around it. Ms. Chadha and other groups have been at odds with the government over the issue since last March.

“We have to develop a framework that is equitable, with human-rights considerations being paramount. Which means it can’t be built on ageist or ableist notions, or assumptions about quality of life,” she said. “This is the problem.”

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said ICU doctors have been familiarized with the emergency triage protocol – even though the government says it remains unapproved – and that committees at hospitals across the province to oversee it have been set up. He held up a paper triage form in a Twitter video on Friday, urging Premier Doug Ford to tighten public-health measures.

He also criticized the government for so far declining to say it would, if needed, issue an order to override Ontario’s health care legislation and allow for the withdrawal of lifesaving care from patients already in the ICU who are unlikely to survive. Under the plan as it stands now, only new patients would face ICU triage.

It’s unclear, Dr. Warner warned, how the plans would roll out in what would be an unprecedented crisis.

“This could be battlefield medicine,” he said. “We may end up having to improvise.”

 The Globe and Mail February 7, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontarios-life-and-death-emergency-triage-protocol-remains-a-work-in/

News

Ontario’s life-and-death triage protocol still in progress

By JEFF GRAY

Staff

If a third wave of COVID-19 overwhelms Ontario hospitals, and intensive care units run out of beds, the province’s doctors could be forced to make previously unthinkable decisions about who gets access to life-saving treatment. Precisely how they would do that remains largely under wraps even as concern mounts about the spread of more contagious new variants of the virus.

Ontario has cancelled procedures, added beds and helicoptered patients from hotspots to less-crowded hospitals to avoid the worst. But its contingency planning for how doctors would cope with an uncontainable COVID-19 surge has occurred largely behind closed doors. That has raised alarms with disability rights activists and the Ontario Human Rights Commission, who warn hospital triage protocols must guard against discrimination.

Meanwhile, some doctors say a draft “emergency standard of care” distributed to hospitals last month – but not publicly released – does not go far enough.

They say it lacks a grim but necessary provision: The power to unplug patients who are unlikely to survive from life support without consent to make room for those with a better chance.

Not allowing this kind of triage, some doctors argue, could create a kind of first-come, firstserved system, in which patients who might have lived are denied access to scarce ICU beds because others who have little hope already occupy them. More people, they say, would end up dying.

The problem is a legal one. In Ontario, removing life support without the consent of the patient or their next of kin or designated decision maker has been barred since the Supreme Court of Canada decision ruled in 2013 that the province’s Health Care Consent Act applies to both providing and withdrawing care.

The decision did not affect other provinces.

Quebec’s triage protocol, which has been made public, would allow doctors to apply a set of criteria to remove patients from life support without consent if needed. Other jurisdictions, including New York, have had to invoke triage protocols, formal or informal, to deal with tidal waves of COVID-19 cases.

Ontario’s COVID-19 bioethics table, made up of critical-care doctors and academics, recommended in a September “framework” document that the government issue an emergency order “related to any aspect [of the triage plans] requiring a deviation from the Health Care Consent Act.” It also called for an order to provide liability protection for doctors. The document laid out the principles for triaging patients in a COVID-19 surge.

In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.”

The draft emergency standard of care distributed to hospitals would classify new patients needing life support based on how likely they are to survive for 12 months. But those already inside the ICU, no matter how small their chance of recovery, would stay put.

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said the government has to issue an emergency order to fix an unfair triage plan that would leave more people dead. But he said he realizes politicians would rather not confront the issue before it is necessary: “I understand that this is a nuclear football for any government.”

Last month, with more than 400 COVID-19 patients in ICUs across the province, hospitals raised frantic alarms. But with the recent slowdown in infections, numbers have declined.

On Friday, the province said it had 325 patients in its ICUs with the virus.

Critics say Ontario is wrong to keep the life-and-death deliberations quiet. Disability rights activists obtained leaked copies of the framework and the proposed standard of care and posted them online. Neither of the cochairs of the bioethics table responded to requests for comment for this article.

“That’s just the way Doug Ford likes to do things, behind closed doors, and in secret,” Opposition NDP Leader Andrea Horwath said. “But on something like this, literally life-and-death decisions … there’s just no excuse to not make these kinds of policy decisions the result of massive engagement with Ontarians.”

Disability rights activists say the current proposal would discriminate against the disabled.

Some hold that doctors should never remove a patient from life support without consent.

“That is a point that we shouldn’t have to get to,” said Mariam Shanouda, a lawyer with the ARCH Disability Law Centre, who argues the government must do more to ensure such drastic measures are never needed.

David Lepofsky, a lawyer and chairman of the Accessibility for Ontarians with Disabilities Act Alliance, said the triage protocol lacks an arm’s-length process to appeal decisions, which doctors say is not compatible with acting quickly in a crisis. He also questions the government’s legal authority to issue an emergency order that would allow doctors to remove a patient from life support without consent.

“Any doctor that would consider doing this, I hope they’ve got a lawyer,” Mr. Lepofsky said.

Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.

Dr. Frolic said the government needs to assure ICU doctors that the protocol and an emergency order are in place long before infections begin to spike again, so that doctors – and the public – are prepared: “That’s not necessarily something that can turn on overnight.”

The Lawyer’s Daily February 8, 2021

Originally posted at https://www.thelawyersdaily.ca/articles/24331/research-project-seeks-to-understand-covid-19-justice-barriers-for-people-who-live-with-disabilities

Research project seeks to understand COVID-19 justice barriers for people who live with disabilities

Researchers at a western Canada university have embarked on studies into how measures to combat COVID-19 have impacted access to justice for Ontarians with disabilities living in care centres and people with mental disorders in British Columbia’s prisons and psychiatric facilities.

Thompson Rivers University (TRU) law professor Dr. Ruby Dhand is one of the researchers who in January launched the two projects. Each is being run in collaboration with various legal and advocacy groups. The goal, to use legal and scientific research to promote legislative change.

The Ontario project, Dhand told The Lawyer’s Daily, will also involve a TRU science professor and a law professor from the University of Windsor and will be run in collaboration with the Toronto-based ARCH Disability Law Centre (ARCH).

According to a description on a TRU webpage, the project will examine “COVID-19 barriers to justice for those who live with disabilities in these congregate care settings,” such as long-term care homes, group homes and assisted living facilities.

Dhand said restrictions put in place to combat the health crisis have resulted in a lack of care, community supports and “communication devices,” as well as fallout from visitor bans and reductions in standard services.

“We’ve recognized that people with disabilities, as this pandemic has evolved, who are living in congregate care settings … have really been disproportionately impacted,” said Dhand. “It’s become clear that over 80 per cent of these COVID-19 related deaths have occurred in these long-term care facilities. … They are experiencing complex forms of discrimination.

“[The] purpose of this research to highlight those voices, because this will be a quotative, multidisciplinary research project. … We recognize that, throughout this pandemic, the voices of people with disabilities have really be silenced, and it doesn’t seem like they’ve been prioritized.”

Dhand also talked about the controversial emergency “triage” protocol put together by the province, which would reportedly allow doctors in intensive care units to decide who gets a bed and who doesn’t in the event hospitals become overwhelmed by the health crisis.

“A clear access to justice issue has also been Ontario’s triage protocols,” Dhand said. “As a result of the triage protocols, a person with a disability will be deprioritized. The protocols state that they will be deprioritized for a ventilator [if their] future quality of life is determined to be poor because of their disability. So, disability advocates have raised concerns about the discriminatory impact of the triage protocols on people with disability in congregate care settings. … Access to health care is an access to justice issue.”

In January, ARCH issued a statement about possible temporary suspensions to Ontario health-care legislation that “would effectively permit doctors to withdraw treatment from a patient without the consent of the patient or family” if hospitals end up having “more patients than resources.” This would accompany the province’s triage protocol, ARCH goes on to state.

The Accessibility for Ontarians With Disabilities Act Alliance recently said that such a thing would be like “recklessly tap-dancing in a constitutional minefield.”

Dhand hopes the research she and the others conduct will help prompt legislative change.

“This proposed partnership comes at a critical moment in ARCH’s advocacy efforts, and we want to be able to help; we want to be able to have this research create disability-informed responses to the pandemic and post-pandemic planning.”

Turning to the second research project, Dhand says this B.C.-based initiative is examining COVID-19 transmission risks and barriers to justice for those being detained in the province’s mental health facilities, prisons and detention centres.

It is in collaboration with a number of community organizations, including the West Coast Justice Society and the Elizabeth Fry Society.

“People with mental health and substance use issues who are in mental health facilities and prisons and detention centres have an increased potential of death,” said Dhand. “They experience much higher likelihood of getting COVID-19 because these are congregate care facilities, where people live in crowded and confined spaces with high transmission risk. And there is also a lack of resources [and] a lack of [personal protective equipment]. And people with mental health and substance use issues have already pre-existing health issues and vulnerabilities.”

Dhand said they can also “experience consent and capacity issues” and, in some cases, “may not even understand what the public health measures mean.”

She also cites “a lack of community-based care and diversion options” and an increase in the use of solitary confinement and lockdowns since the start of the pandemic.

Both projects will run for up to two years, Dhand said.



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


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

February 1, 2021

SUMMARY

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

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

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

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

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

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

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

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

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

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

MORE DETAILS

1. How This Might Work in Practice

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Recklessly Tap-Dancing in a Constitutional Minefield

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. There are Ready Solutions Open to the Ford Government

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

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

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

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

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

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

The AODA Alliance is standing by and ready to help.

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

For more background on this issue, check out:

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

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

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

February 1, 2021

            SUMMARY

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

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

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

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

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

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

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

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

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

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

            MORE DETAILS

 1. How This Might Work in Practice

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

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

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

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

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

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

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

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

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

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

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

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

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

 2. Recklessly Tap-Dancing in a Constitutional Minefield

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 3. There are Ready Solutions Open to the Ford Government

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

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

The AODA Alliance is standing by and ready to help.

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

For more background on this issue, check out:

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



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


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

January 26, 2021

SUMMARY

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

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

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

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

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

For more background on this issue, check out:

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

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

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

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

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

MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The Bottom Line

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

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

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

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

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

3. Right to Early Notice

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

4. Right to Disability Accommodation in the Triage Process

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

5. Who Should Make the Triage Decision

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

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

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

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

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

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

6. Right to Input Into Triage Decision

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

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

7. Right to Appeal a Denial of Needed Critical Care

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

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

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

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

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

b) The appeal process must be very fast.

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

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

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

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

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

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

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

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

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

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

8. Accountability for Triage Decisions

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

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

a) the number of cases and related medical decisions;

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

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

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

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

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

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

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

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

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

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

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

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




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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

January 26, 2021

            SUMMARY

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

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

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

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

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

For more background on this issue, check out:

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

            MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. The Bottom Line

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

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

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

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

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

  1. Right to Early Notice

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

  1. Right to Disability Accommodation in the Triage Process

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

  1. Who Should Make the Triage Decision

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

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

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

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

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

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

  1. Right to Input Into Triage Decision

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

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

  1. Right to Appeal a Denial of Needed Critical Care

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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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




Source link

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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Ontario Patients to Be Ranked for Life-Saving Care Should ICUs Become Full, Documents Show


Codi Wilson Web Content Writer, CP24
Published Monday, January 18, 2021

TORONTO –Patients with the greatest chance of survival beyond 12 months should be prioritized for critical care in the event that overwhelmed Ontario hospitals need to begin rationing life-saving treatments, the provincial government said in a document sent to hospitals earlier this month.

The province’s triage protocol guidance states that patients should be assessed and placed in a colour-coded framework based on their risk of short-term mortality, which is defined as survival beyond 12 months after the onset of critical illness.

“In the context of a major surge in demand for critical care resources, where the demand actually exceeds the number who can be safely managed with available resources (including ventilators, supplies and trained staff), it is inevitable that some who may have otherwise benefited from critical care will not receive it, and as a result, some will die who would otherwise have lived,” reads the province’s triage protocol document, dated Jan. 13, 2021.

“In such a context, an emergency standard of care is appropriate in order to mitigate the worst effects of this surge. This document represents an emergency standard of care that aims to reduce preventable deaths to the degree possible.”

According to the document, patients with a short-term mortality risk of 80 to 99 per cent should be labelled “red,” those with a 50 to 79 per cent risk should be labelled “purple.” Those with a short-term mortality risk of 30 to 49 should be categorized as “yellow” and patients with a risk of 1 to 29 should be labelled “green.”

The province states that in a “level 1 triage scenario,” patients who have a greater than 20 per cent chance of surviving twelve months should be prioritized and in a “level 2 scenario,” those with a greater than 50 per cent chance should be prioritized for care.

“Under a Level 2 triage, the hospital and regional authorities should continue to coordinate transportation of patients and resources to optimize the utilization of all critical care resources before initiating a level 3 triage,” the document reads.

In a “level 3 triage scenario,” those with a greater than 70 per cent chance of surviving 12 months should be prioritized for critical care.

“At level 3 triage patients who have suffered a cardiac arrest will be deprioritized for critical care, as their predicted mortality is greater than 30 (per cent). Thus, Code Blue may no longer be called for cardiac arrest, and out-of-hospital cardiac arrests may not be transferred to hospitals in Level 3 triage,” the document states.

All patients being considered for critical care treatment must be assessed by two physicians and if a consensus about the patient’s mortality risk is not reached, the more optimistic prognosis will be selected.

“If demand for critical care continues to exceed available resources at Level 3, there may be little clinical evidence to guide triage decisions on the basis of predicted short term mortality. As a result, triage decisions must appeal to procedural fairness,” the document concludes.

“If triage decisions must be made between multiple patients who cannot be distinguished on the basis of predicted short term mortality, a system of random selection among eligible and not-yet-admitted patients should be implemented by an administrator on call.”

Patients should be assessed “on an ongoing basis,” according to the document.

“ICU physicians should also reassess patients admitted to ICU at regular intervals, 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 despite receiving critical care,” the document continues.

The province has not said at what point hospitals will have to implement the triage protocol but speaking to CP24 last week, Dr. Michael Warner, the medical director of critical care at Michael Garron Hospital, said with around 400 COVID-19 patients in intensive care units around the province, that day could soon be coming.

“Once we get to the 550 number, which we will exceed for sure, that is where a potential triage protocol could be implemented whereby patients who are more likely to survive their COVID-19 or other illness will be given life support preferentially over others if those resources are not available for everybody,” he said.

The chair of the province’s science table said last week that about 25 per cent of all Ontario hospitals have no available ICU beds while another 25 per cent only have one or two remaining.

The province’s latest modelling released last Tuesday indicated that with three per cent case growth, Ontario hospitals could see 1,000 COVID-19 patients in intensive care by early February.

It should be noted that over the past week, COVID-19 case growth in Ontario has significantly slowed.

“We are at a dangerous point,” epidemiologist Dr. Adalsteinn Brown, co-chair of the province’s COVID-19 science table, said while releasing the modelling last week.

“As we climb closer to 1,000 intensive care beds, about half of our capacity filled with COVID-19 patients in February, we will have to confront choices that no doctor ever wants to make and no family ever wants to hear.”

Ontario NDP Leader Andrea Horwath accused the Ford government of keeping the triage protocol document “secret.”

“This document shows us all that we are on the path to heart-wrenching choices and devastating loss if we don’t make this lockdown count with stronger measures ” paid sick days, more help in long-term care, and in-workplace and in-school testing,” Horwath said in a written statement released Monday.

“People that are loved dearly ” people that need medical help the most ” could be left to die if we do not make the choice to throw everything we’ve got at this virus.”

The Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance) also released a statement on Monday, outlining “dire concerns” they have about the protocol’s impact on those living with disabilities.

The group said setting a patient’s 12-month likely survival as the benchmark risks further discrimination against those living with disabilities.

“People with disabilities have been disproportionately exposed to the risk of getting COVID-19, and of suffering its most serious impacts,” David Lepofsky, chair of the AODA Alliance, said in a written statement.

“Compounding this cruel reality, this secret document shows that some patients with disabilities now risk being de-prioritized in access to life-saving critical care that they will disproportionately need if Ontario hospitals, now near the breaking point, cannot provide life-saving critical medical care to all patients needing it.”

The document sent to hospitals stresses the need to consider Ontario’s Human Rights Code when considering decisions on prioritizing care.

Speaking about the triage guidance at a news conference on Monday, Dr. David Williams, the province’s chief medical officer of health, said provincial officials hope that the protocol never has to be implemented.

“You don’t want to think of it in the heat of it, you want to lay these things out ahead of time. So I think they’ve done that with the hope of saying, we hope to never have to use this,” Williams said.

“I think that they are moving it around to look at because you want to have all of the different ones weigh in with their commentary… It’s hard to get a group of doctors in a room together to agree on everything and it is better if you socialize that and get the input and the collective knowledge and wisdom in a worse-case scenario hoping that it’s not something you are going to pull off the shelf.”

He said the province remains in a “precarious” position when it comes to ICU capacity.

“That is just one of the many things that is being done throughout the whole sector to prepare for… different scenarios that we are going to have to face as now our ICU beds are over that 400,” he said.

He noted that the province hopes to eventually bring the number of COVID-19 patients in ICU down below 150.

“That’s where the modellers said we could get back to doing all of the other procedures at the same time. That is a target to head for. I think we can get there,” he said.

“But it’s uncertain… we are plateauing but that doesn’t mean we can’t jump up again because places like the UK, and others, plateaued and then went up very rapidly when the UK variant took off.”

Original at https://toronto.ctvnews.ca/ontario-patients-to-be-ranked-for-life-saving-care-should-icus-become-full-documents-show-1.5271774




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