What’s New

Register for April 20, 2021 Virtual Public Forum on Disability Concerns with Ontario’s Critical Care Triage Plans – Plan to Tell The Virtual April 28, 2021 Toronto Infrastructure and Environment Committee Meeting Not to Allow Electric Scooters

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Register for April 20, 2021 Virtual Public Forum on Disability Concerns with Ontario’s Critical Care Triage Plans – Plan to Tell The Virtual April 28, 2021 Toronto Infrastructure and Environment Committee Meeting Not to Allow Electric Scooters

April 16, 2021

            SUMMARY

Please save the date for these two important events that are fast approaching. For the first one, register now. For the second one, stay tuned for details on how to register to take part.

Please publicize both of these events widely on social media, and by carrier pigeon (but only if the birds are socially distancing).

            MORE DETAILS

1. Register to Attend the Online Public Forum on Tuesday, April 20, 2021, on the Danger Facing People with Disabilities if Ontario Must Ration or Triage Life-Saving Critical Care

The newest wave of COVID is overloading Ontario intensive care units, which is what triggered Ontario’s latest lockdown. As a result, life-saving critical care in Ontario hospitals could very soon be rationed or “triaged.” Serious concerns about the triage protocol have been raised by disability organizations such as ARCH Disability Law Centre and the Accessibility for Ontarians with Disabilities Act Alliance.

This is a time-sensitive issue. We encourage you to join us on Tuesday, April 20 at 7:30 p.m. for a virtual information session to learn more about Ontario’s triage protocol and why it matters.

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

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

2. Save the Date! On Wednesday, April 28, 2021, Tell the Online Meeting of Toronto’s Infrastructure and Environment Committee Not to Allow Electric Scooters in Toronto

On Wednesday, April 28, 2021, the City of Toronto’s Infrastructure and Environment Committee will be discussing whether Toronto should lift the ban on riding electric scooters in public places. Members of the public will be able to register in advance to speak to that Committee at that meeting before it debates the issue. We urge as many people as possible to sign up to speak against allowing e-scooters. E-scooters endanger the safety of the public, including people with disabilities, and will create new barriers impeding people with disabilities.

We will let you know when you can sign up, and how to register to present. That opportunity to register may not open up until just a few days before the April 28, 2021 meeting.

Members of the public each get only 3 to 5 minutes to speak, so you don’t have to talk long. You can even speak for a shorter time and just tell the members of City Council not to allow e-scooters.

We know the e-scooter corporate lobbyists will be organizing to again pressure City Council. We want City Council to stand up for people with disabilities and to stand up to the e-scooter corporate lobbyists.

Stay tuned for more information on this. You can learn all about our efforts to protect people with disabilities from e-scooters by visiting the AODA Alliance website’s e-scooter page.

As COVID-19 Infections Hit Record Highs and Hospital ICUs Reach the Brink, Five Bioethicists on The Ford Government’s Bioethics Table Release a Public Statement Revealing Major Concerns with Ontario’s Plans for Triage of Critical Care, that Echo Disability Community Objections

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

As COVID-19 Infections Hit Record Highs and Hospital ICUs Reach the Brink, Five Bioethicists on The Ford Government’s Bioethics Table Release a Public Statement Revealing Major Concerns with Ontario’s Plans for Triage of Critical Care, that Echo Disability Community Objections

April 15, 2021 Toronto: A body blow has just been delivered to the Ford Government’s controversial plans for deciding which patients would be refused life-saving critical care, if the crisis overload in Ontario hospital intensive care units requires that life-saving critical care must be rationed or “triaged”. Five members of the Ford Government’s own advisory “Bioethics Table” have today published an online statement, set out below, that strongly criticizes Ontario’s critical care triage plans. Their concerns reflect serious objections to Ontario’s triage plans from the disability community, including from the AODA Alliance.

The five bioethicists (who don’t claim to speak for the entire Bioethics Table) urge that the Government should now reveal its secret critical care triage plans to the public, should consult the public, and should hold and open discussion of how critical care should be triaged, if rationing becomes necessary, without treating this as a purely clinical issue or one for bioethicists to monopolize. (Key excerpts also set out below)

These five authors make it clear that Ontario needs a better approach to critical care triage. This is a direct blast at the Ford Government’s persistent secrecy on this issue and its refusal to speak directly to key stakeholders like those from the disability community. We offer the example that the Government has refused to even answer eight detailed letters from the AODA Alliance since last September which identify well-researched objections.

The five bioethicists explain that decisions over who should get life-saving critical care and who should be refused it during critical care triage is not simply a clinical question (i.e. one of medical science alone). Ontario’s secret critical care triage protocol treats this triage as purely a clinical question. The five authors humbly emphasize that bioethicists themselves have no monopoly on wisdom in the area of how critical care triage should be conducted.

These authors urge that it is important to respect the human rights of disadvantaged groups in society. We add that the AODA Alliance and others have been showing for months that Ontario’s plans are replete with disability discrimination, contrary to the Ontario Human Rights Code.

We expect that the Ford Government will answer that the Bioethics Table, of whom these five authors are a part, held consultations with a number of disability advocates, including the AODA Alliance. That would be no answer. Those discussions ended months ago. The external Bioethics Table only gives advice to The Government. The Bioethics Table makes no decisions on how critical care triage should be conducted, and rejected some of our major concerns without giving reasons for doing so. Those in the Government who do make the decisions have steadfastly refused to talk to us. The Government has hidden behind them for months, like human shields.

The secret January 13, 2021 Critical Care Triage Protocol is not available on any Government website, but is available on the AODA Alliance website.

In light of this important statement by several of The Government’s own external advisors, the AODA Alliance calls on the Ford Government to take these four urgent steps:

  1. Now make public the current version of the critical care triage protocol, all reports and recommendations by its external Bioethics Table since September 11, 2021, The Government’s plan of action for rolling out critical care triage if needed, and the results of drills or simulations of critical care triage held at any Ontario hospitals.
  1. Remove disability discrimination from the January 13, 2021 Critical Care Triage Protocol, and
  1. Immediately hold a public consultation on how critical care triage should be conducted.
  1. Introduce legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

Key statements to this effect by the five bioethicists on the Ford Government’s external Bioethics Table in this article include:

“As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under.”

“We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources – especially to the people most likely to be impacted by intensive care triage decisions – as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.”

“Science alone cannot tell us how to allocate ICU beds.”

“Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage”

“Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.”

“It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

“We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic.”

“The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.”

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For More Background

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.
  1. Ontario’s January 13, 2021 triage protocol.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

Healthy Debate April 15, 2021

Originally posted at https://healthydebate.ca/opinions/icu-triage/?utm_source=mailpoet&utm_medium=email&utm_campaign=we-need-to-talk-about-triaging-critical-care_12

Opinion

Public conversation on the ethics of intensive care triage during pandemic is overdue

by Alison Thompson, Paula Chidwick, Lisa Jennifer Schwartz, Stephanie Nixon, Lisa Forman, Robert Sibbald

COVID-19 has highlighted the ethical challenges in our health-care system, and nowhere is this more apparent than in an overcrowded intensive care unit. ICUs are where the sickest of the sick receive life-saving treatments and where their crashing bodily functions are taken over by high-tech machines.

Even when there isn’t a pandemic, not everyone can get access to intensive care, and not everyone will benefit from it. It is costly, invasive and requires a highly skilled workforce to make it run.

In the early days of the COVID-19 pandemic, people around the world were shocked by the images of ICU doctors working around the clock in Wuhan, Turin and New York. Their faces were etched with bruises from their tight-fitting face masks. Their eyes were haunted by the sheer number of patients they were treating – and by the sheer number they couldn’t treat.

These early warnings from other countries signaled that Canadian provinces needed to avoid a major surge of patients that would strain intensive care resources. But, preparing for the worst, work on guidance for intensive care triage began very early on in the pandemic, with Saskatchewan and Quebec starting in late winter 2020 and Ontario in the spring of 2020 across several of its COVID-19 advisory tables.

As bioethicists involved in developing an ethical framework for ICU triage at the Ontario COVID-19 Bioethics Table, we have serious concerns about the lack of transparency and public engagement around the constraints the Table works under. To be clear, we do not speak on behalf of the COVID-19 Bioethics Table, but we do speak as scholars in clinical and public health ethics and in human rights law who are also members of that Table.

We are beholden to the public as bioethicists helping to develop guidance for the ethical use of public resources – especially to the people most likely to be impacted by intensive care triage decisions – as well as to the physicians who will be forced to make these fraught decisions. This requires that the process be informed, transparent, inclusive, reasonable and subject to revision in light of new information or legitimate concerns or claims.

To date, these requirements have not been met in several provinces, including Ontario, and we entreat governments to make available their triage frameworks and protocols for public deliberation.

Rationing intensive care beds is fundamentally an ethical endeavour

Science alone cannot tell us how to allocate ICU beds. Should they go to the sickest patients? Should they go to those who are most likely to benefit from treatment? Should we use a lottery system? Should we withdraw treatment from patients if they are not going to have a meaningful recovery to give the bed to someone who will? And what constitutes a meaningful recovery? These are ethical questions requiring value judgements.

Many pandemic response plans focus on maximizing the benefit of scarce resources to save the most lives. Allocating ICU beds to people who are unlikely to benefit from them is often considered unethical and inefficient. Clinicians who work in the ICU often talk about the moral difficulty of providing treatments that sometimes do more harm than good. The moral burden of care in these circumstances weighs heavily on ICU clinicians when left to make these decisions alone and without ethical guidance.

How should health equity be balanced with utility in intensive care triage?

Society’s failure to address upstream causes of ill health and inequities means that the futility or efficacy of ICU care is often determined well before people are brought to the doors of an ICU. To fail to attend to this in triage frameworks and clinical protocols undermines trust. Whose lives we save is not just a matter of how we apply clinical criteria. It is a matter of redressing unfair inequalities in health and a matter of protecting fundamental human rights.

And while utility is one worthwhile objective of health policy, it must be balanced with due consideration of the human rights of people who might be disproportionately, unjustifiably or morally harmed by clinically based triage decisions. Relying on clinical criteria like judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to help distribute health benefits fairly across society through explicit consideration of social disadvantage.

Human rights advocates, disability rights advocates, Indigenous health partners and members of the Black community have voiced concerns about the potential for discrimination when triage does not take stock of societal factors and when they are not involved in the process of developing triage criteria. Meaningful inclusion of these communities and their perspectives is essential for the ethical legitimacy of ICU triage frameworks to balance utility with equity.

The public needs to join the conversation on an ethical approach to triage

Consensus on a proposed ethical framework for pandemic triage, even just among bioethicists, is unrealistic. Nor is it necessarily desirable. In fact, the role of dissensus in bioethics is crucial to avoiding the narrowing of possible policy avenues and avoiding presumptive constructions of various stakeholders.

As bioethicists, our expertise is in sketching the moral landscape, providing options and framing ethical debate. Our job is to propose a possible approach to intensive care triage that the public and stakeholders can then weigh and deliberate. It is also to propose and promote accessible and ethically defensible processes for doing so.

Bioethicists are not moral authorities, and governments ought not decide on an approach to intensive care triage without engaging in broader moral deliberation with the public and with those who will be most affected.

To be sure, public deliberation will not make the decisions about how to prioritize patients for intensive care any easier, nor will it necessarily make it easier to live with the consequences. But it would ensure that all voices have been heard, innovative approaches have been considered, and that new ethical considerations can come to light. It is a distinctly political obligation to ensure that the triage protocol is grounded in an ethical, democratic process and that it is based on values that have been justified through stated public reasons.

We join the COVID-19 Bioethics Table, the Ontario Human Rights Commission and disability rights advocates in calling for transparency and public deliberation on the unfinished work of developing Ontario’s approach to critical care triage in a major surge during the COVID-19 pandemic. Other provinces must also follow suit. Specific attention needs to be paid to partnering with people who have been marginalized by both the process and the products of ICU triage development.

The protection of fundamental legal and human rights during an emergency is a litmus test for society, and we need to do everything in our power to avoid overriding rights unjustifiably. Without public discussion, the vulnerability of already marginalized groups is intensified and trust eroded.

No province in Canada can claim to have a morally legitimate and human rights compliant approach to triage until an accessible and public discussion takes place about how to balance equity with the aim of saving lives in a pandemic.

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

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

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

April 14, 2021

            SUMMARY

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

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

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

  1. b) On April 13, 2021 Andrea Horwath, Ontario’s Leader of the Official Opposition, and Joel Harden, the Ontario NDP disability critic, released a strong statement on the critical care triage issue, also set out below. It blasts the Ford Government for its secret critical care triage protocol that wrongly discriminates based on disability. We thank the NDP for this action, and urge it to give this urgent issue as much public attention as possible.
  1. c) On April 12, 2021, the Thunder Bay Family Network held a Zoom public forum to rally disability rights organizers and advocates in northern Ontario on the disability discrimination concerns with the Ontario critical care triage protocol and plan. AODA Alliance Chair David Lepofsky spoke at that event. A video of that event is posted on TBFN’s Facebook page. We congratulate TBFN and all those who attended and who made this such a success. We urge other organizations to hold similar events. We’d be delighted to help. Email the AODA Alliance at aodafeedback@gmail.com.
  1. d) There continues to be some media attention on the critical care triage issue, but we need more of it!

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

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

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

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

For More on these issues, check out

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.
  1. Ontario’s January 13, 2021 triage protocol.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.
  1. You can also visit the AODA Alliance’s COVID-19 web page to see what we have been up to, trying to ensure that the needs of people with disabilities during the COVID-19 crisis are properly addressed. Send us your feedback! Write us at aodafeedback@gmail.com. Please stay safe!

            MORE DETAILS

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

55 University Avenue, 15th Floor

Toronto, Ontario M5J 2H7

www.archdisabilitylaw.ca

(416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)

(416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)

(416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) (Toll Free)

 

Sent via email at nwhitmore@cpso.on.ca and feedback@cpso.on.ca

April 13, 2021

Dr. Nancy Whitmore, Registrar and CEO

College of Physicians and Surgeons of Ontario

80 College Street

Toronto, Ontario M5G 2E2

Dear Dr. Whitmore:

Re: Triaging of Critical Care in Ontario

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

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

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

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

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

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

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

Sincerely,

ARCH Disability Law Centre

Robert Lattanzio

Executive Director

cc:

Premier Doug Ford premier@ontario.ca

Christine Elliott, Minister of Health Christine.Elliott@ontario.ca

Helen Angus, Deputy Minister of Health  Helen.Angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility  Raymond.Cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility  Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services Todd.Smithco@pc.ola.org

Janet Menard, Deputy Minister of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner, Ontario Human Rights Commission  cco@ohrc.on.ca

David Lepofsky, Accessibility for Ontarians with Disabilities Act Alliance aodafeedback@gmail.com

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

April 13, 2021

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

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

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

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

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

Toronto Star April 8, 2021

News

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

[Premier Doug Ford is vowing to have…]

Rob Ferguson, Robert Benzie and Kristin Rushowy Queen’s Park Bureau

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

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

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

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

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

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

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

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

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

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

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

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

“We haven’t finalized any of that.”

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

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

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

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

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

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

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

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

Close contact with anyone from another household is discouraged.

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

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

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

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

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

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

London Free Press April 2, 2021

Originally posted at https://lfpress.com/opinion/columnists/baranyai-triage-framework-should-be-debated-if-public-is-to-have-confidence-as-third-wave-rises

Baranyai: Triage framework should be debated as COVID’s third wave rises

Author of the article: Robin Baranyai • Special to Postmedia News

A triage nurse waits for patients in the Emergency Department. (File photo)

Under normal circumstances, patient triage is about identifying who should be treated first: who needs resuscitation, and who can wait to have their broken wrist set. It is not a question of whether the patient receives the care they need, but when.

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

The case for delaying the second vaccine dose

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

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

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

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

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

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

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

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

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

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

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

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

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

write.robin@baranyai.ca

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: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

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

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

 

  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

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: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

April 13, 2021

Dr. Nancy Whitmore, Registrar and CEO

Via email: feedback@cpso.on.ca; nwhitmore@cpso.on.ca

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 premier@ontario.ca

Christine Elliott, Minister of Health, Christine.Elliott@ontario.ca

Helen Angus, Deputy Minister of Health helen.angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility Raymond.cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services todd.smithco@pc.ola.org

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission cco@ohrc.on.ca

Craig Roxborough, Director of Policy, College of Physicians and Surgeons of Ontario Craig Roxborough croxborough@cpso.on.ca

Robert Lattanzio, Executive Director, ARCH Disability Law Centre lattanr@lao.on.ca

Ontario Human Rights Commission Again Commendably Raises Human Rights Concerns with Ontario’s Critical Care Triage Plans, While the Ontario College of Physicians And surgeons Appears to Wrongly — Green Light Those Plans The AODA Alliance Responds!

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Ontario Human Rights Commission Again Commendably Raises Human Rights Concerns with Ontario’s Critical Care Triage Plans, While the Ontario College of Physicians And surgeons Appears to Wrongly — Green Light Those Plans The AODA Alliance Responds!

April 23, 2021

 SUMMARY

Things are moving fast on the terrifying critical care triage front. The AODA Alliance and the disability organizations with whom we are collaborating are trying to stay ahead of a potential tidal wave facing us all.

What’s New?

  1. We understand that within the past two days, the Ontario College of Physicians and Surgeons wrote all Ontario Physicians. If our information is correct,, the College gave doctors the green light, if the Ontario Government directs it, to refuse or withdraw critical care in accordance with the critical care triage protocol which we have repeatedly blasted as disability-discriminatory.

We have just written the College of Physicians to ask for confirmation of this. If it is accurate, then we strongly object to this action, and ask the College to rescind it. The College is the self-governing professional body that licenses and regulates physicians in Ontario. As our letter, set out below, explains, the College never got our input on our serious disability-related concerns about Ontario’s disability-discriminatory critical care triage protocol and plans.

  1. On this same front, today the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, has commendably issued another public statement on this critical care triage issue. We set it out below, as well. She reiterates the Ontario Human Rights Commission’s serious concerns with the Ontario Government’s critical care triage plans.
  1. Yesterday our April 8, 2021 news release raised concerns about the possibility that the Ford Government might agree in advance to indemnify doctors if they deny critical care to a patient who needs it, should critical care triage be directed in Ontario. Beyond that news release, there are so many ramifications if the Government takes this step.

For one thing, it will implicate the Government directly in any patient’s death that results from critical care triage. We would argue that that is the case, even without any indemnification arrangement with doctors. However, an indemnification arrangement cements it even more.

Will the Government give doctors a blank check in advance, paying all their damages claims and paying for their defence lawyers, no matter how a doctor acts when deciding who lives and who dies? Why is the Government not removing the flagrant disability discrimination from the January 13, 2021 Critical Care Triage Protocol, both because it is wrong, and because the taxpayer should not be giving physicians a guaranteed advanced blank check for such human rights violations. It certainly seems that the public should have some say in this life and death issue.

For more background

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.
  1. Ontario’s January 13, 2021 triage protocol.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

MORE DETAILS

April 9, 2021 Letter from the AODA Alliance to the Registrar and CEO of the Ontario College of Physicians and Surgeons

Accessibility for Ontarians with Disabilities Act Alliance

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Dr. Nancy Whitmore, Registrar and CEO

Via email: feedback@cpso.on.ca; nwhitmore@cpso.on.ca

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 write to ask about the position of the Ontario College of Physicians and Surgeons on Ontario’s plans for critical care triage if COVID-19 overwhelms hospitals, requiring rationing of critical care. We are especially concerned that those plans include flagrant disability discrimination, a lack of required due process for vulnerable patients whose lives are at stake, and a troubling failure to respect basic legal requirements.

We understand that the College of Physicians and Surgeons appears to have sent an email to all licensed physicians in Ontario within the past 48 hours on the topic of critical care triage. It is our understanding that this email states in material part as follows:

“Critical Care Triage

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 College appreciates how challenging the pandemic has and continues to be for physicians working in critical care capacities. If the pandemic worsens and intensive care admissions increase, physicians may be faced with very difficult decisions regarding the allocation of scarce resources. It is essential that physicians be supported in making the extraordinary decisions they may be faced with and that the public trust how those decisions are being made.

The College notes that the provincial government has enabled a centralized authority, its command tables, to manage, oversee and co-ordinate the implementation of appropriate critical care triage tools should this become necessary. 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. Transparent and sensitive communication with patients’ families will continue to be of paramount importance in these situations.”

Can you please confirm whether this is what the College has written to all Ontario doctors? If it is not, please let us know what the College has directed physicians on this topic.

If this or words to like effect are what the College has directed, we ask that the College immediately and publicly rescind it. It fails to take into account or even acknowledge the clear disability discrimination and denials of due process in Ontario’s critical care triage plans, which are contrary to the Ontario Human Rights Code and the Charter of Rights. Numerous serious human rights concerns with Ontario’s critical care triage plans have been repeatedly and publicly voiced by respected disability organizations like the AODA Alliance, the ARCH Disability Law Centre and others, as well as by the Ontario Human Rights Commission. Our efforts on this issue are extensively documented on our website’s health care page.

Before the College gives the Ontario Government’s critical care triage plans an official regulatory stamp of approval, it should, at a minimum, speak with those of us who are raising such serious concerns, and effectively take our concerns into account. We most recently crystalized many of those concerns in the AODA Alliance‘s February 25, 2021 report on Ontario’s critical care triage plans.

We regret that the Ontario Health Ministry and Minister has not met with us, or even responded to our detailed correspondence on point. We have been relegated to the Government’s external advisory Bioethics Table. That Table makes no decisions, and has wrongly rejected key concerns that disability advocates have raised, too often without any explanation. After August 31, 2020, we did not had any meetings with that Bioethics Table except one on December 17, 2020. Our input at that last meeting appears to have been largely if not totally rejected, again, without reasons.

From the content of the Colleges statement which we quote above, if correct, it would appear that the Government and those acting on its behalf must have had direct content with the College in this connection. Can you please let us know what specific input, if any, the College itself 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.

Making this situation worse, frontline doctors and hospitals have been urged to rely on the triage protocol, in a seriously flawed and misleading January, 23 2021 on-line webinar. For example, that webinar told doctors that the Ontario Human Rights Commission was consulted on this protocol, but did not tell them that the Commission and community groups have serious human rights objections to it.

It is our position that physicians who act pursuant to Ontario’s critical care triage plan and protocol do so at their peril. We share the view that there must be public trust and transparency in this issue. It has to date been mired in protracted secrecy as well as questionable public statements by the Government and those who have publicly defended Ontario’s critical care triage plans.

The College of Physicians and Surgeons of Ontario is required to regulate physicians in the public interest, protecting patients. The College should take a position on this critical care triage issue that is fully respectful of the rights and needs of vulnerable patients whose very lives are at stake during critical care triage.

We would welcome the chance to meet to provide the College with the input and information it should consider to take an informed and appropriate position on this issue.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

Twitter: @davidlepofsky

cc:

Premier Doug Ford premier@ontario.ca

Christine Elliott, Minister of Health, Christine.Elliott@ontario.ca

Helen Angus, Deputy Minister of Health helen.angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility Raymond.cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services todd.smithco@pc.ola.org

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission cco@ohrc.on.ca

April 9, 2021 Public Statement by Chief Commissioner of the Ontario Human Rights Commission

Hello,

Today, the Ontario Human Rights Commission issued the following statement by Chief Commissioner Ena Chadha on human rights concerns with COVID-19 critical care triage:

April 9, 2021

OHRC statement on urgent human rights concerns with critical care triage

Unfortunately, Ontario is in its third wave of COVID-19. During its April 7 press conference to announce a stay-at-home order, the Ontario government emphasized that ICU admissions are increasing faster than the “worst-case scenario” predicted by their experts. The government also said it has not sanctioned any triage protocol should doctors be forced to decide who gets access to critical care and who does not. And last night, Ontario Health ordered hospitals to postpone non-urgent surgeries because of the growing caseload of COVID-19 patients.

The Ontario Human Rights Commission (OHRC) urgently calls on the government to clarify the status of the Adult Critical Care Clinical Emergency Standard of Care for Major Surge protocol (the Emergency Standard of Care) that was circulated to hospitals in January. The government must also confirm that the Health Care Consent Act prevails to protect the rights of patients and families at this time. Further, government should require hospitals to promptly collect data on vulnerable groups most affected by the pandemic, including older people, people with disabilities, Indigenous peoples and Black and other racialized people admitted to ICUs and whenever critical care is withheld or withdrawn.

Over the past year, the OHRC has repeatedly raised concerns about various versions of the triage protocol and the Emergency Standard of Care, including writing to the government last November and December.

On March 1, the OHRC highlighted concerns that the Emergency Standard of Care document and supplementary materials (such as an online short-term mortality risk calculator) included potentially discriminatory content, and called on the government to not implement Emergency Standard of Care without sufficient public input or consultation. The OHRC also called on the government to publicly release and consult human rights stakeholders, including the OHRC, on the latest versions of the proposed critical care triage framework to make sure that this document and the Emergency Standard of Care, were consistent with and uphold the Ontario Human Rights Code. We asked the government to do this before a potential third wave overwhelmed Ontario’s health-care system. Regrettably, that did not happen.

As the pandemic continues, the need to reflect human rights principles and respect human rights obligations in every response is greater than ever before.

We must ensure that vulnerable groups disproportionately affected by the pandemic are not further disadvantaged by measures taken to manage critical care services in the days and weeks to come.

Ena Chadha

Chief Commissioner

Danger of Disability Discrimination in Access to Life-Saving Critical Medical Care Grows as Overloaded Ontario Hospitals Near the Breaking Point

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Danger of Disability Discrimination in Access to Life-Saving Critical Medical Care Grows as Overloaded Ontario Hospitals Near the Breaking Point

April 8, 2021 Toronto: The newest wave of COVID is overloading Ontario intensive care units, triggering yesterday’s new provincial lockdown. The day looms dangerously closer when life-saving critical care in Ontario hospitals will be rationed or “triaged”. Yet Ontario’s mishandled critical care triage plans are an impending disaster, leading some people with disabilities to fear going to hospital. Serious concerns have been raised by disability organizations and the Ontario Human Rights Commission.

One year ago today, in an open letter to Premier Ford, over 200 community organizations first sounded the alarm that patients with disabilities will suffer disability discrimination if critical care is rationed under the Ford Government’s earlier secret triage protocol. One year later, Ford still hasn’t remove disability discrimination from the subsequent, revised January 13, 2021 critical care triage protocol that was sent to all hospitals.

Here are two examples of flagrant disability discrimination contrary to the Ontario Human Rights Code: Ontario’s January 13, 2021 critical care triage protocol improperly ranks a patient’s access to life-saving critical care lower if they are over 65, have a progressive disease, and cannot perform some or all of eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. As well, a cancer patient gets lower priority for critical care if they are “Capable of only limited selfcare; confined to bed or chair more than 50% of waking hours” or if they are “Completely disabled and cannot carry out any self-care; totally confined to bed or chair”.

Under Ontario’s critical care triage protocol, each triage doctor can end up being a law unto themselves. Ontario hospitals have been quietly urged to conduct drills or simulations of how they’d choose who lives and who dies if critical care triage is ordered. This is all secret from the public. The public has a right to know whom hospitals are choosing to refuse critical care in those simulations, and how differently the same case is decided from hospital to hospital.

Ontario’s critical care triage plan does not provide patients whose life is at risk with much-needed due process and procedural fairness. Making this even worse, the Ford Government refuses to answer if critical care triage directions have been sent to ambulances, e.g. restricting which patients should be resuscitated before being taken to hospital.

There are other serious problems with Ford’s plans. The Government cannot direct which patients live or die by simply sending a memo to hospitals. Any triage protocol must be clearly mandated by valid legislation.

“Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a lawfully mandated triage protocol that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities. They have already unfairly and disproportionately suffered from COVID-19 and from the pandemic’s worst hardships,” said David Lepofsky, Chair of the non-partisan AODA Alliance, one of the disability organizations sounding the triage alarm. “Doctors and hospitals will proceed at their peril if they use Ontario’s disability-discriminatory critical care triage protocol, which the Government has never made public, but which is revealed to all on the AODA Alliance’s website.”

A deeply-troubling January 23, 2021 online video tries to sell doctors on using the January 13, 2021 Critical Care Triage Protocol. It wrongly aims to lead doctors to think that they need not worry about inequities or the risk of legal consequences, while concealing from them that protocol’s serious human rights problems.

Some physicians have wrongly pressured the Ford Government to suspend the Health Care Consent Act so that a doctor can evict a patient from critical care who is already receiving critical care, without that patient’s consent. We oppose this and dispute that Ontario can do this. Ford hasn’t ruled this option out. Ford would be tap-dancing in a constitutional minefield to try it.

It is worrisome that Ontario is reportedly considering granting doctors some sort of blank cheque or indemnification for triage decisions to refuse a patient critical care they need. This could involve the Government paying any claims that a doctor or hospital faces for denying life-saving critical care to a patient who needs it. Such indemnification would wrongly give supreme priority to the Government protecting the income of doctors over protecting the lives of highly-vulnerable patients. Doctors should not be given immunity from the legal consequences of actions known to endanger a patient’s life. The taxpayer should not be forced to subsidize well-resourced medical insurance companies and doctors’ legal defence lawyers.

“The Ford Government’s mishandling of the critical care triage issue from the start has been plagued by harmful secrecy, evasiveness and a lack of candor,” said Lepofsky. “The Government must now rescind and fix its discriminatory January 13, 2021 critical care triage protocol, must answer our eight unanswered letters (listed below), and must directly consult the public on this issue.”

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For more background

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care.
  1. Ontario’s January 13, 2021 triage protocol.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

As the COVID-19 Pandemic Again Worsens, Here’s Additional Media Coverage of the Ford Government’s Unwarranted Secrecy Over Ontario’s Seriously Flawed Critical Care Triage Protocol and Plans

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

As the COVID-19 Pandemic Again Worsens, Here’s Additional Media Coverage of the Ford Government’s Unwarranted Secrecy Over Ontario’s Seriously Flawed Critical Care Triage Protocol and Plans

April 1, 2021

            SUMMARY

1. The News

The new and much more contagious COVID-19 variants are rapidly spreading. The media reports that Ontario hospital Intensive Care Units have more COVID-19 patients than ever. The Ford Government is understandably imposing more lock-down measures to stem the spread of the pandemic.

This all means that the risk of Ontario having to resort to rationing critical care, also called “critical care triage”, grows ever more imminent. Yet in contrast to regular public reports by the Ford Government on its plans for distributing the COVID-19 vaccine, the Government’s inexcusable secrecy over its dangerous critical care triage plans and protocol remains omnipresent. Below we set out two new media reports on this issue. We offer more reflections on this life-and-death story, one that deserves far more attention from other news organizations.

  1. A CTV News online story that was posted on March 30, 2021 on the critical care triage issue. It also ran on the CTV Toronto 6 pm news on March 31, 2021.
  1. A guest column on the critical care triage issue that ran in the March 4, 2021 Globe and Mail.

2. Some Reflections on the News

  1. Amidst the recent coverage, and not-so-recent coverage, which media organizations are strikingly absent from the scene? Prominent among them is the CBC. CBC’s Ontario-based radio and TV local news programs have included NOTHING on the disability concerns with Ontario’s critical care triage plans in months. Yet Canada’s public broadcaster claims to have a strong commitment to inclusiveness and diversity in its coverage. We will later have more to say about this.
  1. In the CTV news report set out below, attention focuses on the controversial online calculator which the AODA Alliance revealed to the public earlier this year. It was secretly created to help doctors and hospitals decide who will be refused life-saving critical care, if critical care triage becomes necessary.

The AODA Alliance’s February 25, 2021 report on Ontario’s seriously-problematic critical care triage plans made public the existence of this online life-and-death calculator that has been provided to Ontario hospitals and doctors. In the following excerpt from that report, the AODA Alliance also identified the very serious problems with this calculator. The AODA Alliance‘s February 25, 2021 report states

 

“ Ontario Has Created a Seriously Flawed Online Calculator to Compute Who Will Be Refused Needed Life-Saving Critical Care During Triage

We were deeply troubled to discover from the January 23, 2021 webinar that Ontario has created an online “Short Term Mortality Risk Calculator.” It is supposed to calculate whether a patient will be refused needed life-saving critical care, if critical care triage is directed. It is at the website www.STMRCalculator.ca.

A triage physician can input information about a patient who needs critical care into this short term mortality risk calculator. The calculator then coldly spits out a number that gives the patient’s triage priority score. That number will determine whether a patient is eligible for critical care they need, or whether they will be refused critical care, depending on the level of critical care triage that has been directed. During the January 23, 2021 webinar, Dr. James Downar, reportedly the author of the January 13, 2021 Critical Care Triage Protocol and a member of the Bioethics Table, stated:

“We’ve actually also got a calculator now that’s online that helps calculate these and gives the sort of –you can punch in some clinical information. It will give you the answer.”

The Government and its Ontario Critical Care COVID Command Centre and other related health bodies have never announced to the public the existence of this online calculator, to our knowledge. We have seen no indication that it has been successfully field-tested and/or peer-reviewed.

This short term mortality risk calculator is seriously objectionable. First, it wrongly and disrespectfully reduces a life-and-death decision about a seriously ill human being to a cold, digitized computation.

It risks giving triage doctors a false sense that it is the calculator that decides who lives and who dies. That wrongly diminishes a triage doctor’s needed alertness to their responsibility for their action. It is vital for triage doctors to own the triage decisions they make and feel fully responsible and accountable for them. This report later shows further concerns in that regard.

Second, this calculator creates the dangerous false impression that such a life-and-death assessment can in fact accurately and safely become an objective mathematical calculation. Medical science is far from that precise, when it comes to predicting whether a critically ill patient will die within the next year. On the January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, head of the Michael Garron Hospital’s Intensive Care Unit, 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 accurately 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.”

Further supporting the serious concern that that this is not a precise mathematical calculation, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, conceded during the January 23, 2021 webinar that triage physicians will be “estimating” a triage patient’s likelihood of surviving for a year after receiving critical care. Dr. Downar said:

“Ultimately this boils down to an individualized assessment for each person. This is not a checklist that applies to everybody, but simply an approach to estimating short term mortality risk, and using tools as appropriate to do that. The clinical criteria the prioritization criteria are based on published data where possible, and in some cases, based on expert opinion, based on the peer review that Andrea referenced.”

Dr. Downar also earlier said during that webinar:

“The focus of this is on the mortality risk at twelve months, not the estimated survival duration for an individual, right? So we know that it can be challenging to predict survival for individuals, but when we are looking at populations based on published data, we can I think be reasonably more sure about risks and certainly within the ranges, the broad ranges that we are talking about here.”

Third, this online calculator uses criteria that are transparently disability discriminatory, contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Under the heading “Frailty”, for patients over 65 with a terminal illness and expected mortality of more than six months, the calculator uses the disability-discriminatory Clinical Frailty Scale, described earlier in this report. As noted earlier, that Scale inquires about the number of activities of daily living that a patient can do without assistance, including dressing, bathing, eating, walking, getting in/out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, and handling their own finances. The calculator increases the patient’s frailty rating accordingly.

The AODA Alliance and the ARCH Disability Law Centre have amply shown the Government and the Government’s external advisory Bioethics Table that the Clinical Frailty Scale is replete with unjustifiable disability discrimination. See e.g. the AODA Alliance‘s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table. Neither the Bioethics Table nor the Ministry of Health, nor Ontario Health nor the Ontario Critical Care COVID Command Centre have presented any convincing arguments to disprove that the Clinical Frailty Scale is disability discriminatory, contrary to the Ontario Human Rights Code and the Charter of Rights.

That alone would be fatal to this online calculator. However, making this worse, the AODA Alliance has discovered that the online calculator also uses other disability discriminatory criteria. We have not had a full opportunity to investigate the entire calculator from this perspective. However, as an example, for “Cancer”, the calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

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

The online Calculator does not alert doctors to these as serious human rights concerns. A physician using this online calculator could commit flagrant disability discrimination, without being alerted to this, and thinking it is totally appropriate conduct.

The foregoing examples of disability discrimination contradict the clear statement of the Government’s Bioethics Table in its September 11, 2020 report to the Ford Government as follows:

“To emphasize: the existence of disability must not be used as a criterion on which to deny critical care.”

That important sentence is strikingly missing from the later January 13, 2021 Critical Care Triage Protocol. It is not known whether the Bioethics Table later retreated from that important sentence in its later secret January 12, 2021 report to the Government, which the AODA Alliance and the public have not seen.

Fourth, the Bioethics Table and the Ontario Government including its Ontario Critical Care COVID Command Centre, never consulted the AODA Alliance or, to our knowledge, other disability advocates and experts, on this online calculator. The AODA Alliance has no knowledge whether the Government or its Bioethics Table or its Critical Care COVID Command Centre ever consulted the Ontario Human Rights Commission on this online calculator.”

CTV’s March 30, 2021 report quotes Dr. Andrea Frolic (a bioethicist, not a physician) as defending the calculator. She has been quoted more than once in the role of defending the Ford Government’s critical care triage plans. The CTV report states:

““The calculator, to be very clear, is not driving the clinical decision. The calculator simply helps the physician at the bedside to check the accuracy of the clinical judgment,” said Dr. Andrea Frolic of Hamilton Health Sciences.”

That claim is contradicted by the calculator itself and the information about it, set out above, that the AODA Alliance’s February 25, 2021 report provides.

The CTV report later quotes Dr. Frolic again as defending the disability-discriminatory content of the online life-and-death calculator. The news report states:

“All of those criteria were pulled from global medical literature designed to determine the chance that someone would survive a year, Dr. Frolic said.

“Great pains have been taken to ensure that equality, that any patient with any diagnosis gets the same assessment applied, to mitigate any potential bias,” she said.”

Frolic’s remarks are riddled with fatal flaws.

First, even if it were assumed that some studies purportedly point to using disability-discriminatory criteria (a proposition needing much further public inquiry) this would not mean that it thereby justifies disability discrimination that is contrary to the Ontario Human Rights Code and the Charter of Rights. By analogy, had there been a study that showed that a patient’s race or sex made them more likely to die within a year, that would not justify using a patient’s race or sex in the online life-and-death calculator. To be clear, that calculator does not include race or sex, nor are we saying that anyone has claimed that medical literature would support that or that racist or sexist criteria should be used. However, the point remains the same. Such racial, gender or disability discrimination is simply not permitted.

Second, Dr. Frolic says that the aim of this calculator is to treat all the patients the same. In order to achieve equality. Yet, the Supreme Court of Canada has made it clear for decades that “same treatment” can itself create discrimination. For people with disabilities, it often does. It would be “same treatment” to tell all job applicants that they must climb a flight of stairs to get into a building to attend a job interview. Yet for people using a wheelchair, that same treatment is clear disability discrimination.

Dr. Frolic has been told this. She served on the Ontario Government’s advisory Bioethics Table. Last summer, she took active part in meetings with disability advocates including AODA Alliance Chair David Lepofsky. Those advocates explained more than once that “same treatment” can constitute a denial of equality.

We emphasize that Dr. Frolic is not the issue. The Ford Government’s approach to critical care triage is the issue. However, Dr. Frolic is one of the few people who have served in the role of defending the Government on this issue, as the Government remains in hiding.

  1. As noted earlier, below is also set out a guest column in the March 4, 2021 Globe and Mail by bioethicist ARTHUR SCHAFER. He makes a compelling argument why it is exceedingly harmful and dangerous for the Ford Government to keep Ontario’s plans for critical care triage shrouded in secrecy. We repeat here that if a member of the public wants to read those plans, it is the AODA Alliance website and not the Government’s website to which they must turn.

We take decisive exception to one comment in this Globe and Mail column. It argues:

“Quebec, whose triage plan is public, allows doctors to remove patients from life support if their prognosis is poor, thereby freeing up resources for those more likely to benefit. If the goal is to save as many lives as possible, then Quebec’s plan seems ethically preferable to Ontario’s.”

Some doctors are pressing the Ford Government to suspend the Health Care Consent Act, so that a doctor would have the power to unilaterally withdraw critical care from a patient already receiving it, even if that patient objects. We have repeatedly pointed out that this raises massive legal and constitutional concerns. As but one consideration, the column’s author might think that to do so could be “ethical” – a view with which we strongly disagree. There is a real risk that it would implicate Canada’s Criminal Code’s homicide provisions.

As of now, there have been an inexcusable 791 days, well over two years, since the Ford Government received the 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 ground-breaking report. This worsens the festering problems facing patients with disabilities during the COVID-19 pandemic, such as those threatened by the possibility of critical care triage . There are only 3 and ¾ years left for the Ontario Government to lead Ontario to become fully accessible to 2.6 million people with disabilities, as the Accessibility for Ontarians with Disabilities Act requires.

For more background on this issue, check out:

  1. The AODA Alliance’s comprehensive February 25, 2021 report on the serious problems with Ontario’s critical care triage and plan.
  1. The AODA Alliance’s December 21, 2020 news release on the critical care triage issue.
  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  2. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  1. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  1. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

CTV Online News March 30, 2021

Originally posted at https://toronto.ctvnews.ca/would-you-be-admitted-to-hospital-amid-a-covid-19-surge-ontario-doctors-have-an-online-calculator-to-help-check-1.5367752

Would you be admitted to hospital amid a COVID-19 surge? Ontario doctors have an online calculator to help check

Jon Woodward

Videojournalist, CTV News Toronto

@CTV_Jon

Published Tuesday, March 30, 2021 8:02AM EDT

A health-care worker wearing PPE transports a patient in the dialysis unit at the Humber River Hospital during the COVID-19 pandemic in Toronto on Wednesday, December 9, 2020. THE CANADIAN PRESS/Nathan Denette

TORONTO — An online calculator that would help Ontario doctors decide which patients should be treated and which should be turned away COVID-19 cases overwhelm hospitals is meant to be used as a last resort, says an ethics consultant involved in its design.

The “Short-term mortality risk calculation tool” takes in age and medical conditions, and outputs scores that can help a doctor determine the likelihood that a patient will survive for a year if treated.

If that threshold is low — the bed that could have gone to that patient can be given to someone more likely to survive.

“The calculator, to be very clear, is not driving the clinical decision. The calculator simply helps the physician at the bedside to check the accuracy of the clinical judgment,” said Dr. Andrea Frolic of Hamilton Health Sciences.

But that hasn’t quelled worries of advocates for people with disabilities, who say that ingrained in the assessment tools it digitizes are biases against people in wheelchairs or people whose life span may not be clear.

“The calculator dehumanizes it and makes it falsely seem like it’s a mathematical calculation. It is not,” said David Lepofsky of the AODA Alliance, an Ontario disability advocacy group.

He pointed to elements of the “ECOG Grade” that included a score for “Completely disabled; cannot carry on any self-care; totally confined to bed or chair.”

“People with disabilities are disproportionately exposed to getting COVID, and dying of COVID. It would be a cruel irony if they then faced the risk of being deprioritized in getting access to critical care,” Lepofsky said.

The STMR Calculation Tool is a digital expression of the “Short Term Mortality Risk Assessment for Critical Illness” form that doctors may have to fill out if they are overwhelmed. That form was obtained by CTV News Toronto.

In a “Level 1 Triage Scenario,” patients with a greater than 80 per cent chance of dying in the next year are turned away. In Level 2, that drops to 50 per cent. In Level 3, patients with just a 30 per cent chance of dying could be turned away.

Among the list of conditions that could meet that criteria are severe trauma, burns, cardiac arrests, metastatic cancers, strokes, and liver failure.

The form includes a line of age greater than 65, and “Clinical Frailty Score” of greater than seven on a nine-point scale. It cautions doctors that this frailty must be part of a progressive illness, and not an ongoing condition.

All of those criteria were pulled from global medical literature designed to determine the chance that someone would survive a year, Dr. Frolic said.

“Great pains have been taken to ensure that equality, that any patient with any diagnosis gets the same assessment applied, to mitigate any potential bias,” she said.

It’s not immediately clear who is behind the online calculator. There’s no logo on the website, and a check of its domain registration shows “redacted for privacy” on many identifying details.

However in the site’s end user license agreement, the site mentions the “Hamilton Health Sciences Corporation” — an agency of Hamilton Health Sciences. That was where the programming was done for the tool, which was commissioned as part of Ontario’s COVID-19 response, said Dr. Frolic.

Ottawa Centre MPP Joel Harden, who is the NDP Critic for accessibility and persons with disabilities, said there had been little public discussion of what end of care life should be.

“We have a government operating in secrecy on critical life or death decisions. If the hospitals get overwhelmed the government will not debate out in the open what the criteria should be in rationing lifesaving care,” Harden said.

The Ontario Ministry of Health did not return messages left by CTV News Toronto.

 Globe and Mail March 4, 2021 / News

OPINION

Keeping Ontario’s triage plan secret is fostering mistrust

By ARTHUR SCHAFER

Founding director of the Centre for Professional and Applied Ethics at the University of Manitoba

The government of Ontario has a secret triage plan for the rationing of essential medical care. If a third wave of COVID-19 overwhelms Ontario’s hospital system, provincial protocols instruct doctors which patients should get priority life-saving treatments.

Although the guidelines have not been published, they reportedly mandate hospital intensivecare units to withhold life support from patients unlikely to survive at least 12 months. Patients already on life support will not have that support withdrawn, no matter how poor their prognosis.

The cabinet hasn’t yet given formal approval to these triage guidelines. Indeed, the Ministry of Health prefers to describe the plan as merely a “framework document” – with the implication that we need not pay too close attention. Nevertheless, the document has been distributed to the province’s hospitals.

Whether we label it a “plan” or something else, is it ethically defensible? Quebec, whose triage plan is public, allows doctors to remove patients from life support if their prognosis is poor, thereby freeing up resources for those more likely to benefit. If the goal is to save as many lives as possible, then Quebec’s plan seems ethically preferable to Ontario’s.

Most people understand that governments must plan in advance how to allocate resources in a public-health emergency. Absent such planning, decisions would have to be made by individual doctors at their patients’ bedside. Doctors would in effect become gatekeepers for life-support technology; however, this role fits uneasily with the principles they imbibed at medical school. “Every life is valuable. Every patient is entitled to appropriate treatment.”

Instead of asking, “Would my patient benefit from admission to the ICU?” the doctor would be required to ask, “Which of my eligible patients will be most likely to benefit? Or which will benefit most?” For doctors to make this kind of life-and-death choice among their eligible patients seems inconsistent with the fundamental principle of the Hippocratic Oath: The life and health of my patient will be my first consideration.

In situations where some patients will likely benefit greatly from an ICU bed, while others will benefit only marginally, traditional physician ethics come under pressure. “First come, first served” doesn’t seem like an ethically defensible moral rule when the patient who came first is unlikely to survive long while the patient who came second has a more favourable prognosis.

Nor does the “first come” principle help when a decision has to be made concerning the withdrawal of life support once it has begun. For these reasons, giving doctors sole discretionary power to withhold or withdraw life support would impose on them a heavy moral and emotional burden. Equally or more important, it would lead to arbitrary and unfair differences in the way patients are treated.

Thus, a consensus has developed. In times of runaway pandemic, every province should have in place a triage plan for the distribution of scarce health care resources. But who should be responsible for establishing the provincial plan? The government of Ontario quietly established an advisory “bioethics table” to recommend guidelines. Unfortunately, the composition of this expert panel is secret, as are its detailed recommendations. The alternatives considered by the panel and its reasoning are also concealed. Media questioning of the government has elicited a promise that there will be future consultations with “stakeholder groups.” The general public is apparently to have no input in the decisionmaking process.

Understandably, all this secrecy has generated public suspicion. People are wondering what is being covered up, or if the plan discriminates against the elderly, people with disabilities or racialized groups. It’s critically important that governments be held accountable. This means that even those who trust in the bona fides of the government should insist that, in a liberal democracy, the public has the right to be fully informed, hear expert discussions and weigh in with its own views.

Sadly, the Ontario government is not alone in its persistent refusal to recognize that secrecy promotes cynicism and distrust. Governments everywhere could learn a lesson from the “death panel” myth about Barack Obama’s Medicare plan. There was nothing in Mr. Obama’s legislation that would have led to individuals being judged as “unworthy of health care,” but millions of Americans were nevertheless misled. Similar myths about the Ford government’s intentions are already circulating.

Openness and transparency promote trust. When exposed to critical scrutiny by an informed public, the Ontario triage plan may come to be seen as reasonable and fair; but continued secrecy will inevitably feed suspicion that the government is concealing something nefarious.

In a time of pandemic, trust is the most precious resource possessed by public-health officials. Once lost, it can be difficult or impossible to regain.

Please Write to the City of Toronto to Support the AODA Alliance‘s New, Comprehensive Brief on Why Toronto Should Not Lift the Ban on Electric Scooters

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Please Write to the City of Toronto to Support the AODA Alliance‘s New, Comprehensive Brief on Why Toronto Should Not Lift the Ban on Electric Scooters

March 30, 2021

            SUMMARY

The AODA Alliance has just submitted a comprehensive brief to the City of Toronto showing why it must not lift the ban on electric scooters (e-scooters). This brief, set out below, brings together and supplements all the work we have done on this e-scooters issue over the past 19 months. We set the brief out below.

The brief begins with a pithy 3-page summary, for those who don’t have time to read it all. We encourage you or any community organization with which you are connected to email Toronto Mayor John Tory, any City Council member you think appropriate, and Toronto City staff. Tell them you support the AODA Alliance’s March 30, 2021 brief opposing e-scooters in Toronto.

Mayor Tory: mayor_Tory@toronto.ca and you can email City staff by writing

City staff: Janet.Lo@toronto.ca

For an easy-to-use online tool to email Mayor Tory and any City Council members you wish, provided courtesy of the March of Dimes of Canada, visit https://www.marchofdimes.ca/en-ca/aboutus/govtrelations/elections/Pages/escooters.aspx

Please quickly write Toronto. It is anticipated that this issue will come up again at the City of Toronto Infrastructure and Environment Committee on April 28, 2021. We will have more information for you in the coming days.

For more background on this issue, visit the AODA Alliance’s e-scooters web page.

Riding Electric Scooters in Toronto is Dangerous and Must Remain Banned – For Toronto To Allow E-scooters Would be to Knowingly Create New Disability Accessibility Barriers Against People with Disabilities

AODA Alliance brief to the City of Toronto

March 30, 2021

Mayor Tory and Toronto City Council must not unleash dangerous electric scooters in Toronto. Riding e-scooters in public places in Toronto is now banned. It remains banned unless Council legalizes them. The pressure to allow e-scooters is relentlessly being advanced by corporate lobbyists for the wealthy and well-financed e-scooter rental industry. Torontonians, including Torontonians with disabilities, need Mayor Tory and City Council to stand up to the corporate lobbyists, and to stand up for vulnerable people with disabilities, seniors, children and others whom e-scooters endanger.

The AODA Alliance submits this brief to the City of Toronto in opposition to the proposal to lift the ban on riding e-scooters in public places in Toronto. It should remain illegal for e-scooters to be ridden in public, whether on a rental e-scooter or a privately-owned e-scooter.

The non-partisan AODA Alliance has played a leading role in raising serious disability safety and accessibility concerns with e-scooters. To learn more about the AODA Alliance’s advocacy efforts to protect people with disabilities and others from the dangers that e-scooters pose, visit its e-scooters web page.

This issue will likely be on the agenda at the April 28, 2021 meeting of the Toronto Infrastructure and Environment committee. We ask City staff to incorporate this brief’s findings and recommendations in its forthcoming report to The Toronto Infrastructure and Environment Committee and the Toronto City Council as a whole.

 1. Summary of this Brief – Don’t Allow E-scooters in Toronto

Toronto should not lift the current ban on riding e-scooters in public places, whether permanently or for a pilot project. For Toronto to allow people to ride e-scooters, whether ones they own or rent, would knowingly and seriously endanger the safety of people with disabilities, seniors, children and others. It would knowingly create new accessibility barriers against people with disabilities. This would fly in the face of the Accessibility for Ontarians with Disabilities Act and the guarantees to people with disabilities in the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. Here are key incontrovertible facts overwhelmingly established by objective City staff reports and by public feedback:

  1. Having been forewarned, for the City of Toronto to lift the ban on e-scooters in light of the dangers they pose, as documented in this brief, would expose the City to major claims for knowingly endangering Toronto’s residents and knowingly creating new accessibility barriers against persons with disabilities. For the City of Toronto to do so knowingly is the same as doing so intentionally.
  1. E-scooters will cause an increase in personal injuries, including serious personal injuries to innocent pedestrians and e-scooter riders, burdening Toronto’s overburdened hospital emergency rooms. E-scooters are a silent menace, ridden by unhelmetted, untrained, unlicensed and uninsured riders.
  1. If Toronto allows e-scooters, but bans them from sidewalks, experience in other cities shows for certain that e-scooters will nevertheless regularly be ridden on Toronto sidewalks. This endangers innocent pedestrians. Toronto lacks the law enforcement capacity to effectively police new rules regarding e-scooters, such as a ban on riding or parking them on sidewalks.
  1. If Toronto permits e-scooters, this will create new serious accessibility barriers impeding people with disabilities. This will happen especially in public places like sidewalks where they will be left strewn about, as in other cities that permit e-scooters. They will be a tripping hazard for blind people. They will block accessible paths of travel for people using wheelchairs. Toronto already has far too many accessibility barriers in public places such as sidewalks. E-scooters would make this even worse.
  1. Toronto City staff found no other city that has found an effective way to permit and regulate e-scooters and to effectively enforce those regulations.
  1. To lift the ban on e-scooters will invariably place new financial burdens on the taxpayer. The maximum amount cannot be quantified in advance. This will include added health care costs due to e-scooter injuries, cost of added infrastructure to accommodate e-scooters, added law enforcement costs, added regulatory and monitoring costs, and other liabilities triggered by e-scooters.
  1. Toronto’s mayor and City Council have received strong united opposition to e-scooters from the disability community, reflecting the needs of vulnerable people with disabilities ,seniors and children. This includes two successive compelling unanimous resolutions against e-scooters by the Toronto Accessibility Advisory Committee, strong opposition by many respected disability community organizations, passionate deputations against e-scooters by every person with a disability presenting to City Council committees that have invited deputations on this topic, and emails and phone calls to the mayor and City Council members from many people with disabilities and their supporters.
  1. On July 28, 2020, City Council directed City staff to research disability community concerns with e-scooters. City staff’s research further validated and documented disability community concerns with e-scooters. City staff explored options for addressing these concerns and found that there are no workable solutions that are safe and that avoid the creation of new accessibility barriers. The e-scooter rental industry’s proposed solutions would impose significant cost burdens on the public. They would not effectively solve these public safety and disability accessibility concerns.
  1. It is disturbing that on July 28, 2020, almost half of City Council voted to oppose City Staff conducting research on disability concerns with e-scooters. Had those dissenting Council members succeeded, the important new information that City staff has revealed would never have come to light, to the serious detriment of people with disabilities.
  1. In disregard of these serious dangers, a relentless push for e-scooters in Toronto is mounted by corporate lobbyists for the Canadian arm of international e-scooter rental companies such as Lime and Bird. They unleashed an extensive, well-financed and well-connected lobbying feeding frenzy at City Hall. Some City Council members told the AODA Alliance that this is one of the biggest, if not the biggest corporate lobbying blitz now underway at City Hall. An AODA Alliance report documented that between June 2018 and October 2020, the e-scooter corporate lobbyists had fully 1,384 contacts at City Hall, including 94 with the mayor’s office.
  1. Substantially eviscerating their credibility on this issue, this brief documents that the e-scooter corporate lobbyists have made a number of false, exaggerated, misleading and/or transparently meritless claims to support their pressure for Toronto to lift the ban on e-scooters and let them expand their market. If Toronto allows e-scooters, the e-scooter rental companies will be laughing all the way to the bank, while members of the public, including vulnerable people with disabilities, seniors and children, will be sobbing all the way to the hospital.
  1. The e-scooter corporate lobbyists’ entire campaign is based on the erroneous assertion that rental e-scooters will significantly reduce traffic and pollution, because instead of driving, people will take public transit, and then rent an e-scooter to ride the last mile to their destinations. Yet data from City staff and from the corporate lobbyists themselves shows that the vast majority of e-scooter rides are NOT taken to connect to public transit. They thus won’t reduce traffic or pollution. Indeed a proportion of e-scooter renters use an e-scooter instead of walking or taking public transit. Moreover, for e-scooters to be effective for this “last mile”, Toronto must be inundated with thousands of e-scooters, so one is available whenever a rider wants one. This exacerbates city clutter and disability barriers.
  1. The public use of e-scooters in Toronto should remain banned in any form, whether privately owned the by the rider, or rented e.g. through a shared e-scooter program. The AODA Alliance opposes any e-scooter rental program, whether run by the e-scooter rental companies directly or by the City of Toronto e.g. through its Bike Share program.
  1. The AODA Alliance agrees with the Toronto Accessibility Advisory Committee, which called on City law enforcement to enforce the current ban on e-scooters. If someone now illegally rides an e-scooter, City Council should mandate law enforcement to confiscate that e-scooter.
  1. The fact that Toronto earlier approved some other shared economy activities, like Uber ride sharing, should not mean the e-scooter corporate lobbyists get a free pass here. Any prior approval of ride-sharing, for example, did not take into account the dangers that e-scooters pose. Each shared economy proposal should be assessed on its own strengths and dangers. Rejecting e-scooters does not preclude City Council from approving other shared economic activities, where it adjudges them safe and appropriate.
  1. We seek the leadership of Toronto Mayor John Tory. We need him and all City Council to stand up for people with disabilities, seniors, children and others endangered by e-scooters. We need Mayor Tory and City Council to stand up to the e-scooter corporate lobbyists.

 2. The Proof is Overwhelming – E-Scooters Endanger Personal Safety and Accessibility for People with Disabilities, Seniors, Children and Others.

Overwhelming evidence shows that allowing e-scooters in Toronto will endanger the safety of the public, including vulnerable people with disabilities, seniors, children and others. They will also create new accessibility barriers in a city that is already full of too many disability barriers.

 a)Two Strong Resolutions of the Toronto Accessibility Advisory Committee

These concerns are strongly supported by two unanimous motions of the Toronto Accessibility Advisory Committee. Those resolutions were passed on February 3, 2020 and February 25, 2021. The latter reads:

“The Toronto Accessibility Advisory Committee communicate to the Infrastructure and Environment Committee and City Council, for consideration with the next staff report on electric kick scooters, that:

  1. The Committee does not support the use of any electric kick-scooters (e-scooters) in the City of Toronto; and request that a ban prohibiting their use in all public space remain in place without any exceptions, as they:
  2. create a general safety hazard in the public realm for all Toronto residents;
  3. add further barriers for the elderly and persons living with disabilities;
  4. are poorly enforced when illegally used due to insufficient enforcement resources;
  5. further encumber pre-existing inadequate infrastructure.
  6. The Committee recommends that City Council request the Toronto Police Services Board, the General Manager, Transportation Services, and the Executive Director, Municipal Licensing and Standards to consult with accessibility stakeholders to:
  7. develop a public education campaign to effectively convey the existing by-laws on the prohibition of e-scooters use in all public spaces;
  8. actively scale up city-wide enforcement of the by-law prohibiting use of e-scooters in all public spaces.”

It is especially important for Toronto Mayor John Tory and City Council to pay heed to these unanimous strong resolutions. This is because the Accessibility for Ontarians with Disabilities Act (AODA) requires cities like Toronto to create such municipal accessibility advisory committees. They exist in order to alert municipal governments to important areas where priority action is needed on accessibility for people with disabilities. This includes, among other things, action needed to prevent the creation of new accessibility barriers. If a municipal government creates a new accessibility barrier after it was warned not to do so by its accessibility advisory committee, that government will be acting in a deliberate, intentional and harmful way, contrary to the AODA’s goal.

 b) Media Coverage Objectively Documents Serious Harms Caused by E-scooters

Here is a sampling of media coverage objectively documenting the harms and injuries that e-scooters can cause.

*E-scooter hit-and-run crash leaves pedestrian, 65, seriously injured in hospital in Greater Manchester, UK

*Woman left with brain injury after being hit by e-scooter when getting off bus in Auckland court hears

*Six e-scooter riders before courts for intoxicated riding – UK pilots

*According to the Edmonton Journal, in Edmonton 94 percent said they saw e-scooters used on sidewalks, 68% said more enforcement needed.

*The Washington Post reported on January 11, 2019 that a 75-year-old man in San Diego tripped over an e-scooter. He was taken to hospital, “where X-rays revealed his knee was shattered in four places”. The article quotes Wally Ghurabi, medical director of the Nethercutt Emergency Center at the UCLA Medical Center in Santa Monica. Ghurabi said, “I’ve seen pedestrians injured by scooters with broken hips, multiple bone fractures, broken ribs and joint injuries and soft tissue injuries like lacerations and deep abrasions.” The article also reports incidents involving pedestrians in Dallas, where a 32-year-old man was “left with scrapes on his knee and face, as well as a deep gash above his right eye that required seven stitches”, and Cincinnati, where a 44-year-old woman incurred approximately $1000 in medical expenses after being “throw [n]…to the ground” — both following collisions with e-scooters.

*Euronews reported on June 18, 2019, that Paris intended to implement speed limits and parking restrictions for e-scooters following its “first death on an electric scooter”. The French transport minister also announced a nationwide ban on e-scooters on sidewalks, effective September. A week prior to the announcements, a 25-year-old man riding an e-scooter had died after being hit by a truck. The report details other incidents, involving both riders and bystanders. In Sweden, “a 27-year-old man died in a crash while riding one of the electric vehicles in May”. In Barcelona, “a 92-year-old woman died in August 2018 after she was run over by an e-scooter — making it the first case of a pedestrian being killed by the electric vehicle”.

*On July 26, 2019, CBC News reported that since e-scooters became available in Calgary, “Calgary emergency rooms have seen 60 patients with e-scooter-related injuries”. The report added that “[a] bout a third of them were fractures and roughly 10 per cent were injuries to the face and head”. These figures have triggered a study by the University of Calgary.

*The Guardian reported on August 11, 2019 that Paris had experienced its third e-scooter-related death in four months: “A 30-year-old man has been killed after being hit by a motorbike while riding his e-scooter on a French motorway.” The report went on to state that “ [t] he scooter rider was not wearing a helmet and was reportedly travelling in the fast lane when the motorbike hit him from behind”, despite the fact that “[u] sing scooters on motorways is banned in France”. Moreover, “The day before the accident, a 27-year-old woman suffered serious head injuries after falling from an e-scooter she was using in a cycle lane in Lyon. A few days earlier a 41-year-old man had been seriously injured after falling from his e-scooter in Lille.” Finally, the report provided details on another, earlier e-scooter-related death in France: “An 81-year-old man died after he was reportedly knocked over by an e-scooter in Levallois-Perret, a Parisian suburb, in April.”

*CityNews reported on August 13, 2019, as part of a short survey of European regulations, that “German police say seven people have been seriously injured and 27 suffered minor injuries in scooter accidents since mid-June, saying most were due to riders behaving carelessly.”

*In Austin, an article from 2019 states that almost half of the 190 e-scooter injuries in a three-month period were injuries to the head and 15 percent were traumatic brain injuries. Less than 1 percent of injured riders were wearing helmets.

*In San Antonio, wheelchair users complain of e-scooters being left on sidewalks and ramps; these present a danger to individuals who rely on wheelchairs for mobility. The article notes that the e-scooters create profound obstacles for disabled people who are simply trying to get to work or run daily errands.

 

*An article entitled “Sharing the sidewalk: A case of E-scooter related pedestrian injury” published in the American Journal of Emergency Medicine in June 2019 cites multiple studies corroborating the occurrence of pedestrian injuries: one from Israel found that, while pedestrians were 8.4% of the patients admitted for e-bike- and e-scooter-related injuries, they “were more severely injured; compared to electric scooter riders and electric bike riders, pedestrians have higher rates of head, face, and neck injuries; traumatic brain injuries; and hospital stays lasting more than a week”.

 c) Major Disability Organizations Unite in Opposition to Allowing E-Scooters

An impressive number of respected community organizations have voiced the same safety and accessibility concerns especially for people with disabilities and seniors. They have called for e-scooters not to be allowed. A January 22, 2020 Open letter in opposition to e-scooters in Ontario cities like Toronto has been co-signed or endorsed by the Accessibility for Ontarians with Disabilities Act Alliance, March of Dimes of Canada, the Canadian National Institute for the Blind, the ARCH Disability Law Centre, Spinal Cord Injury Ontario, the Ontario Autism Coalition, the Older Women’s Network, the Alliance for Equality of Blind Canadians, Guide Dog Users of Canada, Views for the Visually Impaired, Citizens With Disabilities – Ontario and Canadians with Disabilities of B’nai Brith Canada.

 d) All deputants with Disabilities Addressing City of Toronto Committees on E-scooters Raise Serious Safety and Accessibility Objections

Safety and accessibility concerns led every deputant with disabilities and their supporters, speaking at City of Toronto Committee meetings on this issue, to insist that e-scooters must not be allowed in Toronto. This was the unanimous message from all people with disabilities and their supporters who have addressed the Toronto Accessibility Advisory Committee on February 3, 2020 or February 25, 2021, and who addressed the Toronto Infrastructure and Environment Committee on July 9, 2020.

For example, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, a very long meeting for that Committee, Disability presenters at the meeting were unanimous in voicing total opposition to e-scooters in any form or on any basis in Toronto. John Rae, a blind person over the age of 70, spoke for the Alliance for Equality of Blind Canadians. He described e-scooters as an e-menace to people with disabilities and seniors. He said that any deployment or testing of e-scooters would be a new disability barrier, flying in the face of the Accessibility for Ontarians with Disabilities Act. He said Toronto, including its sidewalks, have been becoming less accessible to persons with vision loss. E-scooters will make this worse. This is an issue of pedestrian safety.

Edward Rice, speaking for B’nai Brith Canada, showed disturbing pictures from Fort Lauderdale Florida, where from a year before, when in a two block area, there were fully 25 e-scooters strewn about the sidewalk. He uses a mobility device. He had to ask strangers to move these out of the way so he could travel on the sidewalk. He called this “embarrassing and humiliating”.

John Mosa, Melanie Marsden and Andrea Hatala together spoke for the GTA Disability Coalition, a network of different disability organizations. They, like Mr. Rice, cited a study of increased emergency room visits in Calgary due to e-scooter use. In Toronto this would compound the discrimination which people with disabilities risk in hospital during COVID-19 due to the Ontario Government’s critical care triage protocol. They identified the barriers to people with disabilities that e-scooters pose, because they are silent and can be difficult to avoid, and because they can be a tripping hazard and mobility barrier on sidewalks. They endorsed the AODA Alliance’s call for e-scooters to be banned, for there to be no e-scooter pilot, and for police to enforce the ban on e-scooters against those now riding them.

Jennifer Griffith, a blind woman who uses a guide dog, described Toronto as an increasingly dangerous and inaccessible city. Her example of dangers are construction sites in the city that she has to try to safely navigate through or around. She described the fear she would face each time she goes out in public if she faces the danger of silent e-scooters injuring her. She would not have heard of a proposal for an e-scooter pilot, had it not been for the AODA Alliance.

Ron Redham is a 60 year old person with a disability who lives in Etobicoke and walks with canes. Having gradually learned how to use canes after having to use a wheelchair, He asked Toronto not to send him and others back on the rehabilitation burdens that he had to go through. He doesn’t want to end up in a wheelchair again. He said in Montreal, 80% of scooters were parked illegally, resulting in them littering the downtown. This led to an early cancellation of their pilot project.

Paul Michaels is from B’nai Brith Canada, a national human rights organization. He has two family members with cerebral palsy. They asked him to share with the Committee their fear that they could not readily maneuver out of the path of an oncoming e-scooter or around a group of e-scooters.

Adam Cahoon said he gets hateful looks when he uses his power wheelchair at full speed, around 8 KPH or so. He said e-scooter scan go over double his speed, making him feel especially vulnerable.

On February 25, 2021, several members of the Toronto Accessibility Advisory Committee also described serious safety and accessibility dangers that e-scooters pose for people with disabilities. For example, a member of Toronto Accessibility Advisory Committee said that deafblind persons would be especially vulnerable.

 e) Toronto City Staff Confirm the Safety Dangers and New Accessibility Barriers that E-Scooters Would Create in Toronto

Two written City staff reports confirm that e-scooters endanger public safety, including safety for vulnerable people with disabilities, seniors, children and others. They will also create new disability accessibility barriers, even if banned on sidewalks. This is confirmed in the City staff’s June 24, 2020 report to the Toronto Infrastructure and Environment Committee, and the City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee.

The City staff’s June 24, 2020 report to the City’s Infrastructure and Environment Committee included these findings:

* “E-scooters pose a risk to people with disabilities due to their faster speeds and lack of noise. Cities that have allowed e-scooters have observed a high incidence of sidewalk riding by riders, whether permitted or not on sidewalks. Parked e-scooters, especially when part of a dockless sharing system, can pose trip hazards and obstacles. Seniors, people with disabilities, and those with socio-economic challenges could face negative outcomes if injured in a collision or fall. Solutions to enforcement and compliance are still in their infancy.”

* “Vision Zero Road Safety – Risks with E-scooters

The City has a Vision Zero commitment to eliminate serious injuries and fatalities resulting from roadway crashes, particularly around six emphasis areas including pedestrians, school children, and older adults. Replacing car trips with e-scooter trips presents an opportunity to address some road safety issues if e-scooters produce a net safety benefit, especially for these groups. A 2020 International Transport Forum study notes that the risk of hospital admission may be higher for e-scooter riders than for cyclists, but that there are too few studies to draw firm conclusions. While not comprehensive, the emerging evidence of the health impacts associated with e-scooter use warrants a cautious approach to mitigate risks to e-scooter riders, pedestrians, and the City. Some of the findings are below.

New e-scooters users are most likely to be injured with 63 per cent of injuries occurring within the first nine times using an e-scooter. (CDC and City of Austin).

A comparison of serious injury rates between Calgary’s 2019 shared e-scooter pilot and Bike Share Toronto suggests riding a shared e-scooter is potentially about 350 times more likely to result in a serious injury than riding a shared bike on a per km basis, and about 100 times more likely on a per trip basis. This includes a limited sample size, differing definitions for serious injuries, different city contexts (e.g., Calgary allowed e-scooter riding on sidewalks, whereas bicycle riding is not allowed on sidewalks in Toronto) and serious injuries may decline over time as people gain experience riding e-scooters. (Montréal reported few e-scooter injuries for its 2019 pilot, however, it is unclear whether and how data for serious injuries was gathered.) Calculations are based on: 33 ER visits requiring ambulance transport over three months (Jul to Sep 2019) in Calgary for e-scooter-related injuries with a reported 750,000 trips, and average trip length of 0.9km; and 2,439,000 trips for Bike Share Toronto, with 3km average trip length, over 12 months in 2019, and no serious injuries (e.g., broken bones, head trauma, hospitalization) but attributing one for comparison purposes. Further data collection and studies of injuries are needed on a per km basis, by type of trip (i.e., recreational versus commuting, facility type), and by injury type.

The fatality rate for shared e-scooter users is potentially nine to 18 times the rate of bike share-related deaths in the U.S., based on a news report in the Chicagoreader.

Head trauma was reported in nearly one third of all e-scooter-related injuries in the U.S. from 2014 to 2018 – more than twice the rate of head injuries to bicyclists. In a City of Austin study in 2018 over three months, 48 per cent of e-scooter riders who were hurt had head injuries (91 out of 190), with 15 per cent (28 riders) experiencing more serious traumatic brain injuries.

Falling off e-scooters was the cause of 80 per cent of injuries (183 riders); 20 per cent (45 riders) had collided with a vehicle or an object, according to a 2019 UCLA study of two hospital ERs in one year. Just over eight per cent of the injuries were to pedestrians injured as a result of e-scooters (11 hit by an e-scooter, 5 tripped over a parked e-scooter, and 5 were attempting to move an e-scooter not in use).

Hospital data will be key to track injuries and fatalities by type and severity, especially for incidents where no motor vehicle has been involved (e.g., losing control) or for a trip and fall involving improperly parked e-scooters. As an ICD-10 code (international standard injury reporting code) specific to e-scooters will not be implemented in Canada until at least spring 2021, a reliable method to track serious e-scooter related injuries and fatalities presenting at hospitals is currently not available.”

* “Other cities have suspended e-scooter sharing services until after COVID-19 (e.g., Windsor approved a shared e-scooter pilot in April 2020, but has now deferred its pilot until after COVID-19). Prior to the pandemic, a number of jurisdictions (e.g., Boulder, Honolulu, and Houston) had refused to allow or banned the use of e-scooters due to public safety concerns. Key cities with similar population, urban form, and/or climate have not yet piloted e-scooters such as New York City (Manhattan/New York County ban), Philadelphia, and Sydney, Australia.”

* “While staff have considered a potential e-scooter pilot on ActiveTO major road closures, it would pose risks to vulnerable road users and leave the City open to considerable liability and risk due to lack of resources for oversight, education and enforcement at this time. A key purpose of ActiveTO is to provide a mixed use space for physical activity for people of all ages for walking, jogging and human-powered cycling. Piloting a new vehicle type that is throttle-powered and can potentially exceed speeds of 24km/hr poses risks to vulnerable road users in such conditions. It could also lead to confusion about which infrastructure or facilities under ActiveTO are permissible, and this would pose public safety risks that the City does not have resources to manage at this time.”

* “Finally, the risk of injury for new users is high, and could put additional burden on local hospitals and paramedics at this time. For the reasons above, City staff do not recommend permitting e-scooters in ActiveTO facilities in 2020.”

* “If Council were to permit e-scooters to be operated on City streets – without the commensurate resources to provide oversight, education, outreach and enforcement, there would be considerable risks to public safety for e-scooter riders and other vulnerable road users; additional burden on hospitals and paramedics; impacts on accessibility, community nuisance and complaints; impacts on current initiatives to enhance the public realm for COVID-19 recovery efforts, such as CurbTO and CaféTO; and liability and costs to the City. For the reasons above, staff recommend that personal use of e-scooters not be considered until 2021.”

* “Accessibility for Ontarians with Disabilities Act (AODA)

Persons with disabilities and seniors have considerable concerns about sidewalk and crosswalk interactions with e-scooter users, as well as concerns regarding trip hazards and obstructions from poorly parked or excessive amounts of e-scooters. The Toronto Accessibility Advisory Committee, a body required under the AODA, recommends that City Council prohibit the use of e-scooters in public spaces, including sidewalks and roads. In other jurisdictions outside of Ontario, some legal action has been undertaken against municipalities by persons injured as a result of e-scooter sidewalk obstructions, as well as by persons with disabilities.“

After City Council directed City staff on July 28, 2020 to do further research on the disability concerns regarding e-scooters, City staff did further research. This further research reinforced the public safety and accessibility concerns addressed above. None of the City staff’s new information refuted or reduced the concerns about the dangers that e-scooters present as raised by disability advocates and others. The City staff’s further research did not support a conclusion that these concerns have been or could be effectively eliminated.

The City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee included

* “According to the UDV (German Insurers Accident Research) in January 2021, e-scooter riders are 4 times more (or 400% more) likely than bicyclists to injure others, due to e-scooters being illegally ridden on sidewalks.

–     In 21% of e-scooter incidents with personal injury, the victim is not the rider, but another road user. This is due in part to e-scooters being ridden on sidewalks 60% of the time when they should be on the road or bike lane.

According to Austria’s Kuratorium für Verkehrssicherheit (KFV) in October 2020, 34% of 573 e-scooter riders observed at several Vienna locations illegally rode on the sidewalk.

–     Even if there was a bike path, 23 percent preferred the sidewalk. If there was only one cycle or multi-purpose lane, 46 percent rode on the sidewalk. If there was no cycling infrastructure, 49 percent rolled illegally on the sidewalk.”

* “Canadian context – City of Calgary

  • No bike share. Only rental e-scooters allowed in Alberta.
  • Allows e-scooter riding on sidewalks.
  • 43% of 311 requests about bad behaviour or conflicts with pedestrians; 42% parking concerns. (total of 769 requests over the pilot period)
  • Now allowing e-scooter use on some roads to reduce sidewalk riding issues. Added slow speed zones and 30 parking zones (2.5% of riders ended trips in parking zones; 10% of the e-scooter fleet was deployed to the parking zones).
  • E-scooters to return via the procurement process. Lowered fleet cap from 2,800 (2020) to 1,500 (2021). Will require licence plates for enforcement.
  • “Likely that e-scooters have the highest rate of injury per transportation mode” but less severe. 43% of EMS e-scooter injuries required surgery (double that of EMS bicycles at 21%). 37% of severe e-scooter injuries had suspected intoxication.
  • 1,300 e-Scooter-related ER visits during the pilot period but may be over-inclusive of other devices referred to as scooters. 75 required ambulance transport, 5% were pedestrians injured.

Canadian context – City of Ottawa

  • No bike share. Personal use and rental e-scooters allowed on roads with max 50km/h limit, bike lanes, and trails/paths that are not National Capital Commission multi-use paths.
  • Lowered max. speed to 20km/hr for e-scooters from the permitted 24km/hr under the provincial pilot. 8km/hr for slow zones, e.g., transit malls/stations.
  • Piloted a fleet of 600 e-scooters with 3 vendors in 2020. Will increase the fleet cap to between 1,200 and 1,500 for 2021 and expand outside the Greenbelt (suburban area).
  • 76% of e-scooter riders surveyed used e-scooters for recreation; 2% to connect to transit (COVID-19 context)
  • Will pilot in 2021 via procurement process. Staff labour costs not included in cost-recovery. Considering designated parking areas. 69% of all survey respondents reported encountering improperly parked e-scooters.
  • No injury data collection with hospitals and not likely for 2021 given the pandemic.
  • Accessibility stakeholders were consulted and raised concerns about sidewalk riding and improper parking, especially barriers for persons with low vision or no vision.”

Despite all the overwhelming evidence that demonstrates e-scooters ‘dangers, the two lead e-scooter rental companies, Bird and Lime, together have campaigned for e-scooters in Toronto in effect as if none of that evidence is true. For example, Bird tried to convey an impression that e-scooters pose no additional danger to public safety, if allowed, and are simply the same as bikes. This defies logic. Unlike bikes, an e-scooter, ridden for the very first time by an utterly inexperienced rider, can silently race faster than 20 kph in seconds, powered by an onboard motor. The faster a vehicle’s speed on impact with an innocent pedestrian, the greater the force applied, and the risk of consequential injury.

Lime has made even more exaggerated claims. It repeatedly told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that rental e-scooters, if allowed, will improve public safety, stating:

“The OECD says in their widely, the most extensive report in the world on micro-mobility that road users will be safer, all road users, if e-scooter and bicycle trips replace travel by car or motorcycle.”

Lime would thus have Toronto believe that the public is at greater danger now, because e-scooters are not allowed. To support this extreme claim, Lime in substance argued that cars are more dangerous to pedestrians than are e-scooters. Is it just a coincidence that this claim serves the economic interests of the e-scooter corporate lobbyists in getting as many e-scooters on the road as possible, claiming in effect that the more e-scooters that are deployed, the safer we all will be?

Of course, cars are much bigger and heavier than e-scooters. They can go much faster than e-scooters. As such, a car can cause greater injuries when it hits a pedestrian.

Lime’s claim rests on fatally flawed premises. First, no one is contemplating banning cars from the road, and replacing them with e-scooters. Second, cars, unlike e-scooters, are not routinely driven on sidewalks, where pedestrians expect and deserve to be able to walk in safety, unthreatened by any motor vehicles. Third, as addressed further below, in cities where e-scooters are allowed, they have not been proven to materially reduce the amount of car traffic on the road.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, the City got a unique opportunity to assess the clash between City staff who say that e-scooters create new safety dangers on the one hand, and e-scooter corporate lobbyists who claim that e-scooters will improve public safety, on the other. Committee members asked both e-scooter corporate lobbyists and City staff to address the clash in the data that each relied upon.

When the answers of City staff and the e-scooter corporate lobbyists are assessed together, the only plausible conclusion is to reject the corporate lobbyists’ claims that e-scooters improve public safety, rather than endangering public safety. City Council is strongly encouraged to prefer the City staff findings. This is so in light of the fact that City staff, acting in the tradition of professional public servants, have provided unimpeachable objective data. In sharp contrast, the e-scooter corporate lobbyists’s have a strong economic motive to exaggerate their claims. As is further documented later in this brief, they also have a disturbing track record of false, exaggerated and misleading claims that brings their credibility into question.

Lime Canada conceded that if a city council saw the information about the impact of e-scooters that City staff presented at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, they would vote against e-scooters. Lime also conceded at that meeting that the highest priority risk areas are parking compliance, compliance with not riding on sidewalks, and riding while intoxicated. We emphasize that all those three areas bear directly on creation of new safety dangers and disability accessibility barriers.

Despite those major admissions, to support its claims that e-scooters will improve public safety rather than endangering it, Lime and Bird referred a report from the International Transport Forum ITF of the OECD at the same Toronto Accessibility Advisory Committee meeting. However, City staff correctly pointed out several critical features of that report that controvert the corporate lobbyists’ reliance on and claims about it.

First, that report, which the corporate lobbyists called an “OECD report”, was not in fact endorsed or approved by the OECD. To the contrary, it is labelled as a Corporate Partnership Board Report. City staff explained that the corporate partnership board includes e-scooter manufacturers and e-scooter rental companies. The report includes a pivotal disclaimer that:

“Funding for this work has been provided by the ITF Corporate Partnership Board” and “It has not been subject to the scrutiny of ITF or OECD member countries and does not necessarily reflect their official views or those of the members of the Corporate Partnership Board.”

Second, Bird claimed that the International Transport Forum of the OECD had concluded that a road fatality is not significantly more likely when using a shared standing e-scooter rather than a bicycle, and that the risk of an emergency department visit for an e-scooter rider is similar to that for cyclists. In response, City staff explained that on page 10 and 20 of the report, it says that the hospital rate may be higher for e-scooters, that hospital admissions related to e-scooter incidents may be higher. It is clear that the report does not prove or support the e-scooter corporate lobbyists’ claims about it. When City staff met with the e-scooter rental industry on January 20, 2021, City staff were very clear in stating that they do not consider, given the research seen, that that the risk profile of e-scooters is merely the same as bikes.

 3. E-scooters Won’t Materially Reduce Road Traffic, Pollution or Climate Change

E-scooter corporate lobbyists make unsubstantiated claims that to allow e-scooters would materially reduce road traffic and combat pollution and climate change. This lies at the heart of their argument in favour of Toronto permitting e-scooters. For example, Lime told the Toronto Accessibility Advisory Committee on February 25, 2021 that e-scooters can save “a ton of car trips”. It turns out that these claims are untrue.

The corporate lobbyists argue that e-scooters would reduce traffic on the roads and reduce pollution because instead of taking a car to their destination, they would ride public transit to get near their destination, and then rent an e-scooter to ride the last mile from transit to their destination, or to ride the first mile from their destination back to public transit. Eviscerating this claim is the fact that most e-scooter renters do not use e-scooters to connect to transit. The February 25, 2021 City staff presentation to the Toronto Accessibility Advisory Committee indicated that in the Ottawa fall 2020 e-scooter pilot, a survey revealed that only 2% of e-scooter riders did so to connect to public transit. As well, the City staff’s June 24, 2020 report to the Toronto Infrastructure and Environment Committee showed that e-scooters are not mainly used to replace car trips:

“While some mode shift from driving to using an e-scooter has occurred in other cities, the majority of e-scooter trips would have been by walking or public transit (around 60% for Calgary and Portland; and 86% in Greater Paris). For example, 55 per cent would have walked instead of using an e-scooter (Calgary). From a Paris area survey, 44 per cent would have walked, 30 per cent would have used public transit, and 12 per cent would have used a bicycle/shared bike; while this study noted that e-scooters had no impact on car equipment reduction, an extrapolation would assume that 14 per cent would have used a car/ridehail/taxi, which still represents a minor shift away from motorized vehicular use.”

Even Lime’s presentation that day only claimed that 20% of their trips are connections to transit. Therefore, fully 80% of e-scooter rides are not for that purpose, even on the most generous statistical claims from the e-scooter industry.

Making this worse, the corporate lobbyists’ claims supporting e-scooters would require Toronto to be flooded with e-scooters. For e-scooters to serve their supposed benefit as a means to connect to public transit in lieu of car rides, people would have to be assured before they leave home that there will always be an e-scooter waiting for them to rent, conveniently available as soon as they get off public transit, to ride that last mile to their destination. Similarly, When they leave their destination to go back home, they’d need an assurance that there would be a rental -scooter waiting for them right there, available ride the first mile back to transit on their way home.

There would therefore have to be a huge number of e-scooters scattered all over Toronto, just in case someone wants to rent them. Short of that, a person has no assurance that they can rely on this mode of travel. Without that assurance, they won’t know if they can get to their destination on time.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, City staff and the e-scooter corporate lobbyists’ presentations, together, show without contradiction that the e-scooter companies do not prefer having e-scooters parked at fixed docking stations, such as those now allocated for Bike Share bikes. Rather, they prefer for a rider to be able to leave an e-scooter on Toronto’s sidewalks, tied to a fixed object. City staff told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that docking stations have the advantage of reducing the tripping hazards, sidewalk clutter and accessibility barriers that are created when e-scooters are parked on the sidewalk.

City staff explained that Bike Share corrals are typically 500 meters apart. The e-scooter corporate lobbyists want e-scooters to be within as little as 300 meters to each other. No doubt, this is because the closer be the e-scooter is to a potential renter or market, the more likely the customer is to opt for their product. Of course, the bigger the flood of e-scooters scattered around Toronto, the better it is for the e-scooter industry’s profits. However, this also makes the new barriers against people with disabilities and the safety dangers to them even more prolific.

This all means that there must be a massive urban blight of e-scooters, akin to that seen in some other cities, for this supposed benefit of reduced traffic and pollution to work. So speculative a benefit is hardly worth the proven harms e-scooters cause.

 4. Allowing E-scooters Would Impose Significant New Financial Burdens on the Taxpayer

City staff reports amply support the inevitable conclusion that to lift the ban on e-scooters in Toronto would impose significant but as-yet unquantifiable financial burdens on the taxpayer. This includes among other things, health care and litigation costs arising from personal injuries caused by e-scooters, the cost of creating and maintaining infrastructure to accommodate e-scooters, the cost of enforcing the laws regulating e-scooters if enacted, the cost of City regulating e-scooters, collecting data and monitoring e-scooter use and e-scooter companies. At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, City staff reported that The City’s insurance and risk management people believe that there would be significant costs to the City if a pilot were to be held. The costs to the City of allowing e-scooters would include costs of claims, cost of police enforcement, cost of City Transportation staff dealing with litter issues enforcement, the cost of City data collection and the cost of staff monitoring and providing oversight. Insurance and risk management is finding it difficult to come up with a specific dollar amount for these costs. This resoundingly disproves the e-scooter corporate lobbyists’ false claims at the July 9, 2020 Toronto Infrastructure and Environment Committee that there would be no additional costs to the City.

COVID-19 has already imposed massive new costs on Toronto, and on Ontario. Toronto is in no position to suffer these added new additional e-scooter costs. If Toronto can afford to spend more now on Toronto’s infrastructure and environment, it should be spent to reduce the many accessibility barriers facing people with disabilities. It should not be spent to create new disability barriers, as e-scooters would cause.

The June 24, 2020 City staff report to the Infrastructure and Environment Committee found:

“There is a significant risk that the City may be held partially or fully liable for damages if e-scooter riders or other parties are injured. Transportation Services staff consulted with the City’s Insurance and Risk Management office (I&RM) to understand the magnitude of the City’s liability if allowing e-scooters. At this time, loss data is lacking on e-scooters due to generally lengthy settlement times for bodily injury claims. The City has significant liability exposure, however, due to joint and several liability, as the City may have to pay an entire judgement or claim even if only found to be 1 per cent at fault for an incident. The City has a $5M deductible per occurrence, which means the City will be responsible for all costs below that amount. In terms of costs, Transportation Services staff will also be required to investigate and serve in the discovery process for claims.

E-scooter sharing/rental companies typically require a rider to sign a waiver, placing the onus of compensating injured parties on the rider. Riders are left financially exposed due to a lack of insurance coverage and if unable to pay, municipalities will be looked to for compensation (e.g., in settlements and courts). Claims related to e-scooter malfunction have been reported by the media (such as in Atlanta, Auckland, New Zealand and Brisbane, Australia). In 2019, a Grand Jury faulted the City of San Diego for inadequate regulation and enforcement of e-scooter sharing companies. By opting in to the Pilot, the City will be exposed to claims associated with improperly parked e-scooters as evidenced by lawsuits filed by persons with disabilities and those injured by e-scooter obstructions (such as in Minneapolis and Santa Monica, California).”

Beyond the foregoing, the City of Toronto could expose itself to major damages claims if people get injured by e-scooters. As amply documented throughout this brief and on the AODA Alliance’s e-scooters web page, Toronto has ample basis to know that e-scooters present proven safety and disability accessibility dangers. For Toronto to expose Torontonians to e-scooters once it has been alerted to these dangers, injured parties can be expected to claim greater damages. This is because Toronto thereby knowingly endangered its residents and knowingly created new disability accessibility barriers. The City could not credibly defend itself by claiming that it had no idea that it was creating these dangers by allowing e-scooters at the behest of the e-scooter corporate lobbyists.

 5. No Effective Insurance Solutions Are Now Available

It has been a fundamental requirement of public policy for decades that the public should be assured that there is sufficient insurance in place to cover those who are injured by motor vehicles. That is why driving a car without proper insurance is an offence.

This is an issue which has not been solved for e-scooters, a form of motor vehicle. The City staff’s June 24,2020 report included:

“This report also recommends the need for improved industry standards at the provincial and federal levels for greater consumer protection in the purchase and/or use of e-scooters. While staff are aware that e-scooters are being considered as an open-air transportation option, the absence of improved standards and available insurance for e-scooter riders, coupled with lack of enforcement resources, would risk the safety of riders and the public on the City’s streets and sidewalks, especially for people with disabilities.”

The City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee said that there would be a need for insurance to cover injuries both to the e-scooter rider and an injured pedestrian. We would add that there would also be a need for insurance to cover damage to property due to e-scooter use, and injuries and property loss due to motor vehicle accidents caused by e-scooter use e.g. if a car needs to swerve to avoid an e-scooter, and ends up in a collision causing personal injuries, death and/or property loss.

The City staff February 25, 2021 presentation concluded in substance that no acceptable insurance solutions for the needs that the City staff identified are now established. Solutions that the industry proposed are not sufficient. For example, the industry proposed that a fund be established to cover losses due to e-scooters. City staff were not satisfied that revenues from a fee to be imposed on each e-scooter ride could cover the funds needed for claims and for the infrastructure that would have to be set up to administer such a new claims fund.

We add that whatever be worked out regarding insurance, the e-scooter rental companies should be assigned first and primary liability for any injuries or losses that are caused to anyone by the use of their vehicles. If they want to make their product available in Toronto, in order to make profits, they should shoulder the costs that are caused to others by the use of their product.

In Ontario, a car’s owner is primarily liable for injuries or losses caused by the car, and not just the driver. There is no reason to exempt the e-scooter rental companies from that wise approach. Otherwise, it gives a massive undeserved financial windfall for the e-scooter rental companies.

In the end, insurance, even if properly available, does not eliminate or reduce the dangers to the public including people with disabilities, seniors, children or others. It presupposes that members of the public will be injured by e-scooters. They will have to shoulder the hardships and high costs of bringing law suits to recover damages. Money can help, but cannot eliminate the physical pain, the loss of abilities, and the other hardships that a serious personal injury and civil litigation can inflict. It would be wrong to proceed on the basis that so long as there is sufficient insurance in place, there is no need to worry about the dangers to safety and disability accessibility that e-scooters will create.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Bird complained that third party e-scooter insurance does not exist in North America, that it is not required anywhere else in North America, and that it is not mandated or provided for Bike Share TO. Yet these provide no reason for dismissing insurance issues addressed here, or the need for there to be proper insurance in place. It just gives another compelling reason why Toronto should not lift the ban on e-scooters.

 6. A Pilot with E-Scooters in Toronto Would Endangers Public Safety and Disability Accessibility, and Exposes The City to Major Financial Claims

There are times where it is worthwhile for the City of Toronto to conduct a pilot project with an innovation, to see if it is suitable for wider adoption. However, Toronto should not conduct a pilot project with e-scooters. There are a number of reasons for this. Each, standing alone, is sufficient to reject that idea. Rejecting a pilot here does not mean Toronto is rejecting the idea of ever conducting pilots in other areas of policy that do not present e-scooters’ dangers.

It is essential to expose why e-scooter corporate lobbyists press so hard for a pilot. They do so purely for tactical marketing reasons. They want their product on the Toronto streets, to build their market. They want to shift the burden to those opposing e-scooters to have to fight an uphill battle to get e-scooters removed, once entrenched. They want the inertia to favour them. They want the City to invest money in their product’s entrenchment, so it will be easier to secure a permanent foothold in this city. They want to point to Toronto to leverage other cities to follow suit.

First, there is no real need for an e-scooter pilot in Toronto. No one has identified an appropriate purpose for an e-scooter pilot. A pilot is conducted to answer specific questions, identified in advance. If the pilot is to ascertain if some people would like to ride e-scooters, we know from other cities that they do. If it is to find out if e-scooters will ride on sidewalks even if banned from sidewalks, we have ample evidence that they do. Indeed we already have first-hand proof that e-scooters are freely and openly ridden on Toronto sidewalks even when they are entirely illegal in Toronto.

If the question to be considered is weather e-scooters endanger public safety and disability accessibility, we have sufficient proof from other cities that they do. There is nothing about Toronto or Torontonians that make these dangers any less than for other cities that have allowed e-scooters. To the contrary, City staff’s June 24, 2020 report shows ways in which Toronto presents added problems, if e-scooters are allowed here. It concluded:

“In addition to the experiences in other jurisdictions, several risk factors are unique to the City of Toronto and play a role in informing the recommended approach to e-scooters:

Streetcar tracks: Toronto has an extensive track network (177 linear kilometres) which poses a hazard to e-scooter riders due to the vehicle’s small wheel diameter.

Winter and State-Of-Good-Repair: Toronto experiences freezing and thawing that impacts the state-of-good-repair for roads. A large portion of roads are 40 to 50 years old, with 43 per cent of Major Roads and 24 per cent of Local Roads in poor condition. Coupled with lack of standards for e-scooter wheels (e.g., traction, size), this makes this particular device more sensitive to uneven road surfaces.

High construction activity: In addition to the city’s various infrastructure projects, Toronto has been one of the fastest growing cities with about 120 development construction sites in 2019.

Narrow sidewalks and high pedestrian mode shares in the Downtown Core and City Centres: Most jurisdictions experienced illegal sidewalk riding by e-scooter users, with some business districts saying e-scooters deterred patrons from visiting their previously pedestrian-friendly main streets. This is especially challenging with physical distancing requirements and other COVID-19 recovery programs expanding the use of the City’s sidewalks and boulevards.”

Second, it is universally accepted that it is utterly wrong to conduct an experiment on human beings without their consent. This is especially so where it is known in advance that the experiment poses a danger to them. Imagine the liability that a government would risk if it subjected people to a trial COVID-19 vaccine without their consent, to find out if it works and if it has any dangerous side-effects.

An Toronto e-scooter pilot would be a human experiment without the consent of those endangered by it. This is revealed by the City staff’s presentation at the February 25, 2021 Toronto Accessibility Advisory Committee meeting. For purposes of gathering data on injuries caused by e-scooters, City staff spoke of collecting data from hospitals before a pilot, during a pilot and after a pilot. City staff explained that the burdens on hospitals during the COVID-19 pandemic precluded their being able to gather the kind of data needed before an e-scooter pilot could begin.

Toronto should not follow Ottawa’s reckless conduct. Ottawa conducted a pilot project with e-scooters right in the midst of the COVID-19 pandemic, without putting in place effective measures for tracking injuries. The Ottawa mayor’s office told AODA Alliance Chair David Lepofsky on the night before the pilot’s approval that if people get injured, they can file complaints. Ottawa unfairly shifted the burden to e-scooter victims to produce evidence of harm they suffered, rather than proactively preventing the harm in advance or ensuring that it is accurately tracked during that pilot.

In these circumstances, if Toronto conducts an e-scooter pilot, it risks facing major financial claims by people injured by e-scooters. As noted earlier, injured victims can be expected to argue, as a factor substantially increasing their right to a large damage award that the City of Toronto decided to subject them to the dangers of an e-scooter human experiment without their consent, having been warned in advance of the safety and accessibility dangers that e-scooters create. That claim for damages would be fortified by the fact that the Toronto Accessibility Advisory Committee twice unanimously recommended against conducting a pilot project with e-scooters, after receiving compelling evidence from multiple sources on the safety and accessibility dangers they pose.

Third, the City staff’s June 24, 2020 report shows that in important ways, the proper legal and operational groundwork has not been done at the provincial or federal level, needed for a pilot project. That report concluded:

* “Although the HTA sets out some e-scooter standards, such as maximum speed and power wattage, due to the nature of urban and suburban conditions such as Toronto’s, City staff recommend that the Province strengthen the device standards for greater rider safety. Based on an extensive literature review, items recommended for further Provincial exploration include a maximum turning radius, a platform surface grip, wheel characteristics (e.g., minimum size, traction, tire width), braking and suspension.

In addition, the Province has not established set fine amounts for offences under the HTA e-scooter regulations. Without this in place, for the police to lay a charge in respect of a violation, a “Part III Summons” is required, which means the police must attend court for each charge laid regardless of severity, and a trial is required for a conviction and fine to be set. This may make it less likely that charges are laid. Fines outside of ones the City could set (e.g. e-scooter parking violations, illegal sidewalk riding) would create workload challenges for Police and courts.

In spite of the Pilot requirement to collect data, there is currently no vehicle type for e-scooters in the Ministry of Transportation’s (MTO) Motor Vehicle Collision Report (MVCR) template used by all police services to report collisions. Unless the Province specifies e-scooters are motor vehicles for the purposes of collision reporting, and has a field for this in its template, e-scooter collisions may not be reported reliably and meaningful collision data analysis will not be possible. In Fall 2019, City staff requested that the MTO add e-scooters as a separate vehicle type, but MTO has not yet communicated they would make this change.”

If Toronto wishes to gather still more information about e-scooters, it should do so without conducting its own pilot experiment on Torontonians, by looking to the personal injuries and disability accessibility barriers that e-scooters created in other cities.

 7. E-Scooter Corporate Lobbyists Have Proposed No Effective Solutions that Will Solve the Problems E-scooters Would Create

City Council will want to know if there are “compromises” i.e. solutions that could allow e-scooters while not making Torontonians suffer from their dangers. The AODA Alliance urges that Toronto should not “compromise” on the safety of its residents. Especially during COVID-19, our political leaders have emphasized that public safety is their number one priority. That should be the case here as well. Compromising on accessibility for people with disabilities should be out of the question, especially when it comes to the danger of creating new accessibility barriers that would compound the many barriers that people with disabilities now suffer from in Toronto.

That said, the question remains whether there are solutions that would not compromise on public safety or on the impermissible creation of new accessibility barriers. City staff commendably gave the e-scooter corporate lobbyists an ample open opportunity to present practical solutions to the dangers that e-scooters create, if such solutions exist. City staff held a meeting with 29 representatives of the e-scooter rental companies on January 20, 2021. E-scooter corporate lobbyists also had the chance to bring solutions to the Toronto Accessibility Advisory Committee on February 25, 2021.

e-scooter companies have a strong financial incentive to present workable solutions. This would open up the highly-desirable Toronto market to them. They are well –positioned to try out effective solutions elsewhere, if there are any. This is because they operate e-scooter rental operations in a number of other cities.

Those companies are well-aware of their need to come up with solutions. The disability community has been raising our disability-related concerns regarding e-scooters for over a year and a half. Such concerns have been raised in other cities.

Despite these opportunities, e-scooter corporate lobbyists presented no solutions that would in fact solve the serious dangers that e-scooters pose. The February 2021 written staff report and the staff oral presentation on February 25, 2021 to the Toronto Accessibility Advisory Committee reviewed key solutions that the e-scooter corporate lobbyists presented to City staff. City staff correctly concluded that none effectively solved the problems that e-scooters present, but impose costs on the taxpayer. The February 25, 2021 City staff presentation stated:

“”Potential solutions to address e-scooter sidewalk riding

  • Protected bike lane/micromobility network and placing e-scooter parking on-street so that trips begin/end off the sidewalk
  • Field staff/ambassadors/patrols and enforcement teams
  • Visible, unique identifiable plate numbers (licence plates for rental fleets)
  • E-scooter sidewalk riding detection technologies* (*emerging technology)

Other proposals to address e-scooter sidewalk riding

  • Geofencing pedestrian areas or slow zones
  • Education and warnings (by companies) and fines for riders (by police)
  • Suspensions/bans on repeat offenders (by companies)
  • Decals on sidewalks and signage
  • Audible warnings on the device for the rider and pedestrians

Potential solutions to address improper e-scooter parking

  • Adequate supply of parking areas (and fleet size caps/reviews)
  • Proper parking verification (photo selfies and/or other technologies)
  • Field staff/patrols and enforcement teams (1-2 hr service standards or better)
  • Braille/tactile and unique identifiable numbers on e-scooters (licence plates for rental fleets)
  • Docked stations* like Bike Share Toronto (*dockless preferred or hybrid by companies)

Other proposals for improper e-scooter parking

  • Education and incentives (e.g., discounts for proper parking or penalties for repeat offenders by companies; or fines to the companies that are passed onto the repeat offenders)
  • “Lock-to” parking mechanism (similar to a bicycle lock)
  • Double kick-stand (less likely to topple over); and
  • Onboard diagnostics indicating the device has toppled over.
  • Photo of e-scooter being locked to a hand railing at steps to an entrance by a man wearing a bicycle helmet and business casual work clothes.
  • Photo of e-scooter locked to bicycle parking with a cable. The bike parking is in the shape of a metal loop attached to the sidewalk in San Francisco with a bike lane painted green in the background.”

The City staff’s February 25, 2021 presentation also stated:

“Accessibility Feedback on Proposed Solutions…

Technologies are still emerging and not adequate yet:

  • Geofencing and other technologies to prevent sidewalk riding are not sophisticated enough and would only apply to rental e-scooters.
  • Docking stations for e-scooters has potential but is still in development.
  • Lock-to cables on e-scooters mean they could be locked anywhere (e.g., café fence/railing) including in spots blocking entrance access and paths of travel.
  • There is already a lack of bike parking so this would worsen the number of sidewalk obstructions on narrow and cluttered sidewalks.
  • If Bike Share Toronto were dockless, there would not be enough bike rings to lock the rental fleet… same for dockless rental e-scooter fleets.

Accessibility Feedback on Proposed Solutions

Not enough city resources for enforcement and infrastructure priorities

  • Oversight is very labour- and resource-intensive and depends on enforcement, which is already stretched or non-existent in parts of the City.
  • Licence plates on rental e-scooter fleets could help, but this is a reactive tool and would be a drain on city resources to monitor and enforce.
  • Bigger priorities for limited city resources.
  • Inadequate infrastructure is a bigger priority – not enough sidewalk space or accessible infrastructure; not enough bike lanes/bike lane space; and not enough public transit.
  • Importance of other city priorities before allowing something which poses a hazard and a nuisance for pedestrians and persons with disabilities.

Accessibility Feedback on Proposed Solutions

Impacts on seniors and persons with disabilities on sidewalks

  • COVID-19 has resulted in challenges for persons with disabilities, their caregivers and pedestrians who use sidewalks as a necessity and not for recreation.
  • Allowing e-scooters will pose hazards that affect persons with disabilities, seniors, their caregivers and pedestrians.
  • Risk of severe injury for seniors or persons with disabilities if tripping and falling or struck by an e-scooter.
  • Inability to identify e-scooter rider because of their speed, and that the person’s credit card on the app may not be the person riding the e-scooter.”

The e-scooter corporate lobbyists presented no information that refuted the City staff assessment of these solutions. None of the information presented by City staff either in its February 2021 report or their February 25, 2021 oral presentation to the Toronto Accessibility Advisory Committee demonstrated any need to subject Torontonians to these dangers in a “pilot project” to see if they would materialize in Toronto. No information was presented to suggest that Toronto would somehow be exempt from these dangers, if it allows e-scooters.

We add the following, which reinforces the City staff’s presentation. Toronto has bike lanes, but it is not a contained network. Moreover, extensive law enforcement would be needed to ensure compliance. Both creating the network and such law enforcement imposes substantial costs on the public. The public should not be required to build massive new infrastructure to let the e-scooter corporate lobbyists make their profits.

At most such bike paths are described as helpful as encouraging e-scooter riders not to ride on sidewalks. Yet such “encouragement” is no assurance that they will comply.

City staff reported that a proposed solution was to use technology such as “geo-fencing” to prevent e-scooters from riding on sidewalks. Using GPS or other technology, the e-scooter itself would supposedly electronically detect when it is going somewhere where it is not allowed to go. City staff correctly concluded that the technology to do this accurately and reliably simply does not exist. We agree. We add that anyone who uses a GPS for directions know that they are not accurate enough to pinpoint whether an e-scooter is on the sidewalk, or mere inches away on the road.

Even if geo-fencing did work, it would only restrict rented e-scooters and not privately owned e-scooters. Yet both rented and privately-owned e-scooters create dangers to people with disabilities.

Lime said that such sidewalk detection technology could help with reminding riders afterwards. The e-scooter rental company could call the offending rider afterwards. Including those with multiple cases of it. This wrongly relies on e-scooter companies with a conflict of interest to lead this activity. It only addresses the problem after the danger has been created, rather than preventing barriers from being created in the first place. Waiting for multiple infractions does not protect the public from one-time riders. This all presumes without proof that the e-scooter companies can effectively track this.

Another proposal from the industry was to have staff educate e-scooter riders. If these staff are to be provided by the City, that would be an unwarranted cost burden on the taxpayer. Even if these staff were to be provided by the e-scooter companies, there would be no realistic possibility of them being situated all over the city to ensure that they reach all or even most e-scooter riders. E-scooter riders would have no obligation to spend time listening to them. There is no assurance that this education would reach many e-scooter riders, or that it would change their behaviour.

The industry’s proposal to require a visible identifiable number to be located on each e-scooter can be partially helpful. However that alone will not materially reduce the problems we have identified.

If an e-scooter rider violates the law, it is not conclusive proof of the rider’s identity to identify the number on the e-scooter, even if a victim can accurately identify that number. The e-scooter companies would have to make available to the public their internal records of rentals, account holders and vehicle numbers. Moreover, the e-scooter rider may not be the same person as the name on the account charged for the e-scooter. This alone would not be sufficient assured proof in court to establish the rider’s identity.

This is also no solution for pedestrians who see a law-breaking e-scooter from the side or from behind, or where the e-scooter is racing too quickly for the pedestrian to read the identification number. Moreover, offending e-scooter riders will quickly learn to cover up the identification number. This solution also depends on the public financing enough law enforcement to catch and successfully prosecute offenders.

Another measure proposed was to add braille and tactile letters to an e-scooter, to enable a person with vision loss to identify it. This presupposes that a person with vision loss trips over an improperly parked e-scooter, and then gropes all over it to find an accessible braille or raised letter identifier. That in turn presupposes that the victim knows that such labels are available, and is prepared to try this groping. This is, far fetched. It also leaves people with vision loss exposed to the e-scooter tripping hazard in the first place.

Lime Canada proposed to the Toronto Accessibility Advisory Committee on February 25, 2021 that E-scooter rental companies could require renters to photograph how they park an e-scooter, and send the photo to the rental company for monitoring. This provides no real public protection. The renter could move the e-scooter right after sending in that photograph.

Similarly, it would be problematic to rely on rental companies to impose or collect fines. This would lack needed law enforcement public accountability and safeguards. The public would have to trust the e-scooter companies. Law enforcement should never be parcelled out to a private for-profit company that has such an obvious conflict of interest. Moreover, if the fine is retained by the e-scooter company, that would simply add to their profits.

The industry proposed that they could suspend multiple violators from being able to rent an e-scooter. However, this requires the many serious impediments to proving a violation and a violator’s identity to first be overcome, e.g. the need for massive increases in law enforcement to detect violators. Moreover, a suspended person could simply use a new credit card to create a new account and then resume riding e-scooters.

The industry’s proposal to increase law enforcement would shift more financial burdens to the taxpayer. It also presupposes that if Toronto were to increase its law enforcement spending, e-scooters should be a top priority. We would suggest that there are now other law enforcement priorities that would compete for attention, e.g. ensuring that the public obeys public social distancing requirements during the pandemic.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime conceded that drunk e-scooter riding will require an “enforcement component”. It said there are “some tech tools that some of the companies would come up with to help identify an impaired e-scooter driver. The industry could then deny the intoxicated rider a ride. There is no suggestion that this intoxication technology exists, or that it has been effectively deployed anywhere

The industry proposed that it could message riders regarding restrictions on e-scooter use. This assumes that voluntary compliance would be sufficient. There is no indication that this has been tried and worked in other cities. We would not dispense with drivers licenses and the related training in exchange for car companies messaging their customers on where they are permitted to drive their cars.

The industry proposed that sidewalks could be marked with notifications not to ride e-scooters there. City staff correctly noted that this would create visual clutter. There are many kilometers of sidewalks that would require this. We add that here again, the e-scooter corporate lobbyists once again propose shifting major costs to the taxpayer to enable them to make their profits. It also presupposes that those who illegally would ride e-scooters on sidewalks only do so because they didn’t know it is forbidden, rather than because they don’t have to fear effective law enforcement.

City staff rejected a proposal that e-scooters emit an audible sound. We note that this measure may help somewhat in overcoming the dangers of e-scooters due to their now being silent. However, this would not overcome the dangers when e-scooters are lying on the sidewalk, blocking pedestrians, nor would this prevent injuries when collisions occur. Moreover, these sounds would have to be loud enough to alert a pedestrian well in advance, so that they can try to evade a fast-moving e-scooter racing towards them.

City staff noted that the industry proposed that e-scooter parking be located on the street, to reduce the chances of them being ridden on the sidewalk. We note that with street parking now at a premium, especially in downtown Toronto where the traffic is often congested, there are harms that would flow from further reducing street parking. From a disability perspective, if any new street parking were to be re-allocated, it should be for more disability parking spots, and not for e-scooters.

Moreover, by having e-scooters parked on the street, this would not in any real way reduce the danger of e-scooters being ridden on the sidewalk. An e-scooter rider could simply continue to ride on the sidewalk and then at the end of their ride, park on the street, if permitted.

To address the problems of parking e-scooters, the industry proposed, among other things, providing them with more e-scooter parking locations. This impinges on limited parking spaces already available in Toronto, as noted above. It also shifts yet another cost to the taxpayer, who would be providing free parking for the corporate lobbyists to make their profit.

The option of providing docking stations was discussed. It burdens the taxpayer with providing the space and paying for the docking stations. It adds to urban clutter.

The industry proposed technology to ensure that e-scooters are parked properly. Yet unless there is a huge supply of staff to monitor this, it will not prevent danger to people with disabilities and others before injuries and accessibility barriers impede people with disabilities.

The industry proposed having a patrol team from e-scooter companies to explore and remedy complaints. City staff said that where tried, the minimum service standard has been one to two hours after a violation is reported by the public, especially during a pilot project. We respond that that leaves the danger to pedestrians in place, and only rectifies it after the fact. It also unfairly burdens pedestrians with having to call in complaints, and indeed, with having to know how to do so and at what number. That depends on a chain of events that is not reliable.

Consideration was given for e-scooter companies to provide rate incentives for those who park properly, such as discounts, or rate penalties for those who do not park them properly. That requires someone to effectively police where each e-scooter is parked. The option of fining the e-scooter company directly for improperly parking the e-scooter raised the concern that the e-scooter company could just pass this cost on to the users, rather than it serving to ensure proper parking of e-scooters. Here again, this presupposes that there is the deployment of ample law enforcement deployed all over the city that has time to conduct all the needed enforcement for e-scooters.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, industry representatives gave major priority to the solution of “lock-to”. A cable is attached to the e-scooter so that when parked, it can be locked to a pole or other object. However, this is no solution at all. It still exposes people with disabilities to e-scooters being left all over the place in unpredictable public locations, as new accessibility barriers and tripping hazards. It wrongly converts our sidewalks and other public places into free parking for the e-scooter industry, with the public substantially subsidizing their profits.

Bird claimed at that meeting that the problem of e-scooters being ridden on sidewalks would be dramatically reduced if riders could lock up a rental e-scooter on the sidewalk, using the “lock to” option. It defies logic to argue that this solves the problem of riding e-scooters on sidewalks. A person would ride an e-scooter on a sidewalk, rather than the road, to avoid cars or the many potholes in our roads. Where one can park the e-scooter at the end of the ride does not dictate whether one chooses to ride on the sidewalk rather than the adjacent road en route to one’s destination.

The industry proposed having each e-scooter equipped with a double kickstand to reduce the risk of them falling over when parked. That suffers from the same problems as the lock-to proposal.

Similarly, the industry’s proposal that each e-scooter have an onboard diagnostic mechanism to indicate if the e-scooter has toppled over also has the same deficiencies. It also assumes that the e-scooter companies will flood the city with enough people to immediately remove such an e-scooter before someone trips over it.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime proposed that the industry could share big data with city officials e.g. if there are locations where there are repeat problems with e-scooters. If this is shown the City might wish to protect the public by creating new infrastructure. By this, it appears to mean that if there is a route where e-scooter riders repeatedly ride on the sidewalk, the City might wish to build a separate path.

By this, the industry concedes the risk of repeat violators. It shifts to the public the financial burden of building new infrastructure to avoid people being injured by e-scooters. It provides no assurance that riders who repeatedly use those sidewalks will stop doing so once a separate bike path is built.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime Canada also says that in the shorter term, this could help focus enforcement on those corridors. That too exposes pedestrians to the dangers of e-scooters, and shifts to the public the cost of additional law enforcement.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime claimed that education of riders along with enforcement are “very good tools”. Yet enforcement is a major public cost burden. It starts from the premise that the e-scooter has already caused harm.

We add that Toronto cannot rely on education of riders, since a rider can rent an e-scooter without having to ever speak to a human being from the e-scooter rental company, from whom they could receive that education. Moreover, Lime Canada conceded that education alone is “not enough” to solve the admitted problem of people riding e-scooters on sidewalks. It conceded as well and that there must be “a degree of enforcement” (though it did not specify how much enforcement it conceded to be necessary).

As explained earlier, an e-scooter is a motor vehicle. Nevertheless, Lime’s solution for the problem of bikes creating accessibility barriers when left on sidewalks is to regulate them as if they were non-motorized bikes. Yet that would simply add to sidewalk barriers. In effect, the industry sought the lowest and most permissive degree of regulation possible, with the least accountability.

For decades, our society has regulated motor vehicles far more extensively than bikes. We require the vehicle and driver to each be licensed and insured. We require the driver to complete sufficient training, including safety training under proper supervision, before being allowed to drive in public. Licenses are gradually graduated for drivers as their experience grows. Vehicles must meet rigorous safety standards. In contrast, the e-scooter rental industry seeks to evade all of those regulations, as if an e-scooter were not a motorized vehicle.

 8. E-scooter Corporate Lobbyists’ Numerous False, Misleading and Exaggerated Claims Further Show Why Toronto Should Reject Their Dangerous E-scooter Proposals

The e-scooter corporate lobbyists’ misleading false and claims, flights of extreme exaggerations and flights of illogic are breathtaking. Toronto Mayor John Tory, City Council and City staff should take their claims with at least a grain ton of salt. They should insist on strong corroboration before accepting any of their claims.

The AODA Alliance’s October 30, 2020 report revealed that these corporate lobbyists have been inundating Toronto City Hall with a huge, well-financed relentless, feeding frenzy of lobbying in the back rooms. Some Councillors have told us that this is one of the biggest, if not the biggest corporate lobbying effort now at City Hall. The AODA Alliance ‘s October 30, 2020 report on this lobbying feeding frenzy gives insight into why in the midst of the COVID-19 pandemic when other pressing issues should be a priority, Toronto’s municipal politicians are so seriously considering unleashing e-scooters in Toronto, despite their amply-documented dangers to people with disabilities, seniors and others.

That report shows that entries in Toronto’s official Lobbyist Registry, filling fully 73 pages, reveal that in just the two years from June 2018 to the present, eight e-scooter rental companies and three lobbying firms have documented fully 1,384 contacts with City Hall in person, by phone, by virtual meeting or by email. Among these were at least 112 meetings with City officials and 1,153 emails. These figures only include contacts which corporate lobbyists opted to record in the Toronto Lobbyist Registry during that period.

Amidst this onslaught of corporate lobbyists’ approaches were a dizzying 94 contacts with the Mayor’s Office, including 10 with Mayor Tory himself, 58 with the Mayor’s Senior Advisor, Legislative Affairs Daniela Magisano, 15 with Mayor Tory’s Director of Legislative Affairs Edward Birnbaum, 10 with his Chief of Staff Luke Robertson, and 1 with Mayor Tory’s Deputy Chief of Staff Courtney Glen. As well, among these documented contacts are 368 contacts with members of City Council, 479 contacts with staff of members of council, as well as 352 contacts with other City staff, among others (We surmise that the corporate lobbyists may not have reached a few janitors).

Beyond those address earlier in this brief, corporate lobbyists’ public presentations in support of e-scooters at the February 25, 2021 Toronto Accessibility Advisory Committee meeting and the earlier July 9, 2020 Toronto Infrastructure and Environment Committee meeting, are replete with the following ten additional falsehoods, exaggerations, and transparently bogus arguments. That they must resort to such meritless arguments to offer further shows that their proposals lack real merit.

As a first example, Bird told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that an important question is whether City Hall continues to ignore the number of e-scooter riders on city streets today, despite the current ban on them, or whether Toronto chooses to regulate this space with “sensible regulations?” It argued that Toronto should lift the ban on e-scooters because some people are now illegally riding privately-owned e-scooters in Toronto.

This falsely suggests that the proper solution to dangerous lawlessness is not to enforce the law, but instead to legalize the dangerous illegal activity. By that reasoning, Canada should lift the ban on unlawful assaults, and regulate assaults instead, since some people illegally assault others. Canada should now lift the ban on heroin and crack cocaine, because some people now illegally use those dangerous drugs.

Instead, the fact that some people are now flouting the law by illegally riding privately-owned e-scooters in Toronto is strong proof that we can expect more flouting of the law by rental e-scooter riders if their use is legalized but banned on sidewalks.

Similarly, Lime relied heavily on the false dilemma that either people will buy their own e-scooters without speed controls, or we can allow rental e-scooters with speed controls. Yet Toronto has the further option of enforcing the law against riding any e-scooters and confiscating any e-scooter ridden illegally in public. That would resolve the whole problem without a necessity of legalizing either owned or rental e-scooters.

Second, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Bird misleadingly described the ban on e-scooters as a “temporary ban”. In fact, the legal ban on e-scooters in Toronto is permanent, unless City Council votes to lift it. Moreover, at present, it can only be lifted for under four years. After that the provincial ban on e-scooters goes back into effect.

Third, Bird told the Toronto Accessibility Advisory Committee on February 25, 2021 that Ottawa’s pilot with e-scooters is the “gold standard” by which Toronto should be guided, as if Ottawa’s experience provides an effective answer to public safety and disability accessibility concerns. Yet Toronto City staff presented earlier at that meeting that Ottawa City staff had not even collected e-scooter injury data. Later at that meeting, CNIB deputed that during the Ottawa pilot, e-scooters were operated unsafely and left in pedestrian clearways throughout the downtown. This caused accessibility barriers and safety hazards. Despite all this, Ottawa is expanding their e-scooter fleet. That means that a key purpose of the pilot, to see their impact on injuries, was disregarded by Ottawa.

CNIB held a public meeting to get feedback from people with vision loss about their experience during the Ottawa e-scooter pilot. It heard alarming stories of safety hazards posed to people with vision loss by e-scooters. There was unsafe operating of e-scooters, regular illegal sidewalk riding of e-scooters and improperly parking e-scooters. 1On a survey about the pilot, 69% of respondents encountered wrongly parked e-scooters. 72% of survey respondents encountered sidewalk riding.

Ottawa City Council nevertheless approved e-scooters for a second pilot despite the staggering data the City itself collected. CNIB warned Toronto not to follow the Ottawa experience. That a leading, e-scooter corporate lobby could point to Ottawa as “the goal standard” shows how dramatically antithetical they are to the vulnerability of people with disabilities.

Lime claimed that in Ottawa, the votes to continue the e-scooter program were nearly unanimous. That only shows the devastating reach of the e-scooter corporate lobbyists.

Fourth, Bird tried to portray e-scooters as an important mobility aid for people with disabilities. The industry tried to appear as if it were advocating in favour of expanded accessibility for people with disabilities when its core business in fact endangers accessibility for people with disabilities.

Lime claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that they embrace the goal of accessibility for people with disabilities. It told that meeting that 8% of their riders have physical disabilities and use e-scooters as “a liberating tool to explore the city”. Yet e-scooters are not viewed as adaptive disability mobility devices in the disability community.

Lime provided no independently-verified objective evidence to support the claim that 8% of e-scooter riders have physical disabilities. They would seem to have no way to verify this, since their rental customers do not interact with Lime staff when renting an e-scooter. Moreover, even if some e-scooter riders have some sort of physical disability, there is no proof of how many, if any, need the e-scooter to meet a disability mobility need. It is important not to confuse a bona fide disability power scooter, in which a person with a disability is seated, and one of Lime’s very different rental e-scooters on which a rider must stand and balance themselves, while travelling much faster than a disability scooter can.

Fifth, Lime made the over-inflated if not bogus claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that allowing e-scooter rentals will help with recovery from the COVID-19 pandemic. This is because people will use an e-scooter to go to stores to shop.

Yet e-scooters are not supposed to be used to transport anything other than the person riding it, such as goods bought in stores. It presumes that e-scooter renters can leave their e-scooter scattered anywhere near any store they wish to visit. This threatens the sidewalk litter, accessibility barriers and tripping hazards that e-scooters have presented in other cities like Ottawa. It presumes that those same shoppers would not go shopping, helping out our economy, had it not been for renting an e-scooter. There is no proof that there has been any such surge in economic activity provably linked to e-scooters.

Sixth, an example of misleading use of statistics was Lime’s claim at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that in Calgary, city data shows e-scooter injuries were far, far less than bike injuries. Even if there is such a statistic, it can easily be explained by the fact that there are far fewer e-scooters being ridden compared to the total number of bikes being ridden. Instead, the relevant statistic to use is the number of injuries per kilometer ridden. At that Toronto Accessibility Advisory Committee meeting, Lime and Bird did not use that relevant measure for injuries, when comparing different modes of travel, whether cars, bikes or e-scooters. They therefore did not account for how many of each kind of vehicle is on the road, or how far they are driven before causing an injury, or the severity of the injury they cause.

Seventh, Lime argued that rental e-scooters have the added protection of in-built speed limits and geo-fencing capabilities, which are not included in e-scooters that people privately buy. As well, as noted earlier, City staff correctly concluded that geo-fencing is not now a reliable technology. As well, to allow rental e-scooters does not assure that people won’t also ride privately-owned e-scooters. Lime advanced the false dilemma that either people will buy their own e-scooters without speed controls, or Toronto can allow rental e-scooters with speed controls. Yet there is the further and preferred option of effectively enforcing the ban on riding any and all e-scooters, and confiscating any illegally-ridden e-scooters.

Eighth, Lime claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that there have been no deaths due to rental scooters because they have speed controls. This claim is dubious. It requires proof that a pedestrian, hit by an oncoming e-scooter at 22 KPH, cannot be killed, but one colliding at 30 or 40 KPH can be killed. No proof of such a medical improbability has been provided.

Ninth, Lime made the unsubstantiated claim at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that e-scooters have a much higher parking compliance rate than do cars. Even if this were assumed to be true, the question is not whether to ban cars. It is whether to allow e-scooters which will create new safety dangers and new disability accessibility barriers. Moreover, cars, even when improperly parked, are not typically left strewn about sidewalks as a tripping hazard and accessibility barrier.

Tenth, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime made the quite exaggerated claim that most major cities outside Toronto had embraced e-scooters, and that unlike Toronto, e-scooters have met with virtually universal acclaim in cities that tried them. This is shown to be misleading, in light of the following information included in the City staff’s presentation to the February 25, 2021 Toronto Accessibility Advisory Committee meeting:

“Large Urban Peer Cities

  • Peer cities have banned rental/shared e-scooters from downtowns in Chicago and New York City.
  • No rental/shared e-scooters yet in places such as:
  • Montréal (not for 2021) or Vancouver
  • Massachusetts (e.g., City of Boston)
  • Pennsylvania (e.g., City of Philadelphia)
  • New South Wales (e.g., City of Sydney, Australia)
  • Scotland (e.g., City of Edinburgh), The Netherlands (e.g., Amsterdam), and
  • Others have banned or since banned them, e.g., Copenhagen (city centre), Houston, San Diego (boardwalk ban), etc.
  • NYC (outside of Manhattan only) and Transport for London (UK) pilots not yet underway.”

City staff noted that Montreal, which earlier did a pilot with e-scooters, will not have e-scooters in 2021. Vancouver does not have e-scooters. Hamilton and Mississauga allow privately owned e-scooters. We add that the City of Mississauga Accessibility Advisory Committee recommended that e-scooters not be allowed. We have seen no reason given for Mississauga rejecting that important accessibility recommendation.

City staff noted that London, Waterloo and Windsor are involved in some sort of public consultations on e-scooters which is slowed due to COVID-19. Calgary only allows e-scooter rentals, as is the case for all Alberta. Calgary allows e-scooters on sidewalks, and has no bike share program. Calgary will now allow some use of e-scooters on roads, to reduce sidewalk use.

Calgary staff advised their Council that it is likely that e-scooters have the highest injury rate per transportation mode. 43% of e-scooter injuries that were transported to hospital required surgery, which is twice the rate for bicycle injuries. In Calgary, 37% of e-scooter injuries had suspected intoxication.

City staff also reported that looking at large cities with similar large populations, similar urban densities and similar climate, Chicago and New York City ban rental e-scooters from their downtown areas. There are no rental e-scooters in Montreal, Vancouver, Massachusetts (e.g. Boston), Pennsylvania (such as Philadelphia), New South Wales (such as Sydney). Melbourne requires an e-scooter to have a maximum power of 200 watts. Most e-scooters require a higher wattage than that. There are no e-scooters in Scotland or the Netherlands. They have been banned in the city centre of Copenhagen, Houston, and San Diego’s boardwalk.

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: aodafeedback@gmail.com 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.

Come to a March 9, 2021 Virtual Town Hall on Helping Stop Toronto from Allowing Electric Scooters that Endanger People with Disabilities, Seniors, children and Others

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Come to a March 9, 2021 Virtual Town Hall on Helping Stop Toronto from Allowing Electric Scooters that Endanger People with Disabilities, Seniors, children and Others

March 5, 2021

            SUMMARY

We’ll have more news to report to you over the coming days about the disability community’s campaign to protect Torontonians with disabilities and indeed all of us from the injuries and accessibility barriers that would be suffered if Toronto wrongly decides to allow electric scooters (e-scooters). Here is just some of the latest news.

  1. On Tuesday, March 9, 2021 at 5 pm EST, CNIB is hosting a virtual public forum to talk about the dangers that e-scooters pose to people with disabilities and others, and to give you ideas on how to help oppose e-scooters. The announcement, set out below, tells you how to take part. Please sign up. While it says it focuses on the dangers to people with vision loss, everyone is welcomed, regardless of their disabilities. We are in it together.
  1. Please encourage everyone to watch our captioned 15 minute video on how to help us get Toronto to reject the idea of allowing e-scooters. The video is available at https://www.youtube.com/watch?v=PDdTJt9NK14&feature=youtu.be We have gotten so much great feedback on it.
  1. It is illegal to ride an e-scooter in Toronto in public spaces like roads, bike paths, and sidewalks. Despite that, some people are buying e-scooters, and then riding them in public. Toronto’s law enforcement need to enforce the law, to protect the public.

The February 24, 2021 Toronto Star included an article reporting on stores that sell e-scooters. It is set out below.

That article quotes AODA Alliance Chair David Lepofsky to the effect that police should enforce the ban on riding e-scooters.

Not addressed in this article, in a breathtaking example of trying to capitalize on illegal use of e-scooters, some e-scooter corporate lobbyists argue that because there are some people buying e-scooters and riding them illegally, the City of Toronto should allow rental of e-scooters. Yet two wrongs don’t make a right. There are assaults going on in our society, contrary to the law. The solution is not to legalize assault.

Stay tuned for more on this issue. For more background, read the AODA Alliance‘s February 22, 2021 brief to the Toronto Accessibility Advisory Committee. Visit the AODA Alliance e-scooters web page.

            MORE DETAILS

CNIB Announcement of March 9, 2021 Virtual Public Forum on How to Fight Against Electric Scooters

The Dangers of Electric Scooters Town Hall

Date: March 9, 2021

Time range: 5:00 pm – 6:00 pm

CNIB has partnered with David Lepofsky of the AODA Alliance (Accessibility for Ontarians with Disabilities Act Alliance) for a special meeting on the issue of e-scooters and their dangers to the low-vision/blind community. Join us as we discuss how we can all take action to ensure Toronto leaves in place the ban on electric scooters.

This meeting runs via Zoom web conference on March 9 from 5 to 6 p.m. Eastern Time. Call in information will be given upon registration.

Please be advised that you must register for all programs. We kindly ask you to RSVP a minimum of 1 full business day before the start of the program.

Registration required. To register for this meeting, please contact Neisha Mitchell, Coordinator Advocacy and Outreach at

Neisha.Mitchell@cnib.ca or call 416- 525-7951

Toronto Star February 24, 2021

Originally posted at https://www.thestar.com/news/gta/2021/02/24/e-scooters-are-selling-fast-in-toronto-retailers-report-the-catch-theyre-illegal-on-city-streets.html

E-scooters are selling fast in Toronto, retailers report. The catch: they’re illegal on city streets |

Barry Nisan, owner of Epic Cycles on Dundas Street West, says e-scooter owners need to respect the law and other road users. “If people are riding on the sidewalk, they shouldn’t be,” he says.

By Ben Spurr

Transportation Reporter

In an article posted to its website last month,

a company called TekTrendy outlined the “key benefits of using e-scooters in Toronto in 2021.”

The electric-powered kick-style scooters “help save time, save money and make travelling more fun,” according to the Toronto-based company, which is just

one of a number of retailers selling e-scooters in the city and whose site lists four models for sale, ranging in price from $699 to $1,099.

“Many of our customers happily use their scooter to commute to the nearest TTC (stop),” the company reported.

There’s just one catch: in Toronto in 2021, it’s illegal to ride e-scooters on city streets, sidewalks, bike lanes, trails, or virtually any other public place. (TekTrendy’s website does advise customers to check the regulations in their area).

The devices are allowed on private property, however, and it’s not illegal to sell them. That grey area has helped foster a growing retail trade that’s troubling to critics who warn e-scooters pose a safety risk. “It is a loophole that needs to be investigated,” said Councillor Kristyn Wong-Tam (Ward 13, Toronto Centre).

She chairs the Toronto Accessibility Advisory Committee, which opposes legalizing e-scooters on the grounds the near-silent vehicles can harm blind people and others with accessibility challenges if they’re ridden or parked on sidewalks. “Unless somebody has a very large backyard that’s paved over that they plan to exclusively use that e-scooter in, there’s a very good chance that they’re going to take it out” on public streets or sidewalks after they buy it, “and none of that is permitted,” she said.

She acknowledged that outright banning their sale in Toronto may not be the best solution, because a prohibition could easily be circumvented through online retailers. The committee is set to debate e-scooters Thursday.

TekTrendy didn’t return requests for comment. It’s far from the only company selling e-scooters in Toronto, however. A handful of independent retailers offer them, and Canadian Tire lists at least six models available at its Toronto locations.

Barry Nisan, owner of Epic Cycles, said demand for e-scooters is growing fast. He recently opened a new location in Toronto’s Junction neighbourhood, in addition to his flagship store in Vaughan (where officials say e-scooters are also barred from public roads). His shops primarily sell electric bicycles,

but he said sales of e-scooters have quadrupled every year since he started stocking them about four years ago. He estimates Epic sold close to 500 of them last year.

Nisan said he informs customers e-scooters aren’t permitted in on Toronto roads. Asked whether it’s responsible to sell vehicles that aren’t allowed on public rights-of-way, he said e-scooter owners need to respect the law and other road users. “If people are riding on the sidewalk, they shouldn’t be. The same as you shouldn’t be riding bicycles on the sidewalk,” he said.

He predicted authorities will soon allow e-scooter use more widely. “We’re excited about it. We think it’s a great solution to commute and travel, and for getting out and having fun,” he said.

Last year the Ontario government took a step toward legalization by launching a five-year e-scooter pilot project. To take part, municipalities have to pass bylaws setting out where the vehicles are permitted. Ottawa has opted in and is reporting positive results so far, but Toronto has yet to take part

despite a flurry of lobbying from e-scooter companies at city hall.

Last June, a city staff report said e-scooters had the potential to be a convenient, low-cost transportation alternative, but it also flagged concerns about safety, lack of enforcement resources, and legal liability.

According to the city, research from Europe shows scooter riders are four times more likely than bicyclists to injure others. Because e-scooters aren’t covered by insurance providers, staff warned accident victims will sue the city if they get hurt.

E-scooter companies dispute research that says the vehicles, which under provincial rules must top out at 24 km/h, are unsafe, and argue they’re no more dangerous than bikes.

The city report recommended Toronto consider joining the provincial pilot if staff concerns could be addressed, and set a tentative date of May 2021 for opting in. But last July council members voted to refer the matter back to staff for more study. They’re expected to report back in April.

In the meantime, it’s not clear to what extent the city is enforcing the current ban on e-scooters in public places. A spokesperson for the Toronto Police

said she couldn’t immediately provide details of e-scooter enforcement.

David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, said “the police need to vigorously enforce the ban on (e-scooters) now.”

City spokesperson Diane Morrison said city staff are aware “some residents (are) using e-scooters illegally” and “we are monitoring those uses.” She said

the city recommends retailers “properly inform their customers of the status of the use of e-scooters on public roads.”

Ben Spurr is a Toronto-based reporter covering transportation. Reach him by email at

bspurr@thestar.ca

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

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

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

March 2, 2021

            SUMMARY

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

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

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

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

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

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

For more background, check out:

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

            MORE DETAILS

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

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

Chief Commissioner

cc:        Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

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

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

Hon. Doug Downey, Attorney General

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

OHRC Commissioners

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

Stakeholder Roundtable

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

Proposed Framework for Ontario

Summary Report

Prepared by:

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

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

21 December 2020

 

Introduction

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

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

 

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

 

Key Issues/Concerns and Potential Actions

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

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

1.     Human Rights and Non-Discrimination as Legal Obligations
 

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

Potential actions:

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

2.     Equity as a Positive Obligation
 

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

Potential actions:

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

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

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

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

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

Potential actions:

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

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

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

Potential actions:

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

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

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

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

 

5. Right to Appeal
 

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

Potential actions:

Ø  Establish an external appeals process by a third party.

6. Development of Interim Protocol for Wave 2
 

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

Potential actions:

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

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

APPENDIX 1: Roundtable Participants

Roundtable Facilitator:

Kwame McKenzie (CEO, Wellesley Institute)

Participants:

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

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

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

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

David Lepofsky (Chair, AODA Alliance)

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

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

Tracy Odell (President, Citizens with Disabilities)

Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)

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

Observers:

  1. Office of the Minister of Health

Emily Beduz (Director, Pandemic Response)

Heather Potter (Director, Issues and Legislative Affairs)

  1. Ministry of Health

Tina Sakr (Team Lead, Priority and Acute Programs)

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

  • Ontario Health

Louise Verity (Strategic Advisor to the CEO)

  1. Ontario COVID-19 Critical Care Command Centre

Andrew Baker (Incident Commander)

 

  1. Ontario Human Rights Commission

Ena Chadha (Chief Commissioner)

Violetta Igneski (Commissioner)

Raj Dhir (Executive Director and Chief Legal Counsel)

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

Bryony Halpin (Senior Policy Analyst)

Jeff Poirier (Senior Policy Analyst)

Rita Samson (Senior Policy Analyst)

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

Jennifer Gibson (Co-Chair; University of Toronto)

Dianne Godkin (Co-Chair; Trillium Health Partners)

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

Cecile Bensimon (Member; Canadian Medical Association)

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

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

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

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

Lisa Forman (Member; University of Toronto)

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

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

Stephanie Nixon (Member; University of Toronto)

Nancy Ondrusek (Member; Public Health Ontario)

Lisa Schwartz (Member; McMaster University)

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

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

Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students

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

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

viii) Recorder

Danielle Linnane (Quality Improvement Specialist, Ontario Health)

 

APPENDIX 2: Development of the Proposed Framework

 

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

 

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

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

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

Acknowledgments:

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

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

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

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

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

 

APPENDIX 3: Roundtable Documents

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

 

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

 

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

 

Publicly Available Advocacy/Feedback related to Critical Care Triage

 

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

 

Journal & Media Articles

 

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

APPENDIX 4: OHRC Recommendations

Summary of OHRC Feedback on Triage Framework

December 18, 2020

 

Interim Framework / Protocol

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

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

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

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

New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge

February 26, 2021 Toronto: There are frightening and indefensible new problems with the Ford Government’s plans for how to decide who lives and who dies if the COVID-19 pandemic overloads Ontario hospitals, leading to rationing or “triage” of life-saving critical care. This is revealed in an exhaustive new report made public today. This thoroughly researched report reveals that:

  1. It is dangerous to relegate concern about Ontario’s critical care triage plans to the back burner, just because COVID infection rates are reducing and vaccines are gradually being distributed. There remains a real risk of another COVID-19 surge. A senior medical advisor to the Government advisor said on January 23, 2021 that such triage may already be taking place.
  1. A seriously flawed, disability-discriminatory and highly objectionable online calculator has been created for triage doctors to determine who will be refused life-saving critical care during triage or rationing of critical care. Such an online calculator’s computation, based on a doctor’s keying in data, should never decide that a patient should be refused life-saving critical care they need. This is especially so when that online calculator discriminates against some patients based on their disability.
  1. If hospitals start rationing or triaging critical care, there is a danger that some emergency medical technicians (EMTs) may improperly refuse to give a patient critical care they need and want before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  1. A transparently erroneous legal strategy has been devised for defending the legality of Ontario’s critical care triage plan. Triage doctors, hospitals and the Ontario Government are expected to argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they are following the January 13, 2021 Critical Care Triage Protocol (a protocol that is rife with serious problems that the AODA Alliance and other disability advocates have previously identified). They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This new report shows that that legal defence strategy is fatally flawed.
  1. A troubling January 23, 2021 webinar to train frontline critical care triage doctors wrongly minimizes the enormity of the role doctors would play, while they are making life-and-death decisions over which patients would get life-saving critical care, if critical care triage takes place. That webinar harmfully and wrongly tries to convince triage doctors not to worry about being sued, so long as they follow the January 13, 2021 Critical Care Triage Protocol. At the same time, that webinar did not alert frontline doctors to the serious disability discrimination and due process concerns that disability advocates have raised with the directions that those frontline doctors are being told to implement if critical care triage is to occur.

“We agree that Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a lawfully mandated triage protocol that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities, who have already disproportionately suffered the hardships of the COVID-19 pandemic,” said David Lepofsky, Chair of the non-partisan AODA Alliance, which campaigns for accessibility for 2.6 million Ontarians with disabilities. “This report confirms that the Ford Government has been hearing from health professionals and their insurance representatives, but the Government needs to end its embargo on directly talking to disability community voices about this important issue. We’ve written the Ford Government, calling on it to rescind the disability-discriminatory January 13, 2021 Critical Care Triage Protocol.”

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For more background on this issue, check out:

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care, available at https://www.aodaalliance.org/whats-new/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/ and the AODA Alliance’s February 25, 2021 letter to the Ford Government, sending it that report.
  2. The January 13, 2021 triage protocol.
  3. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  4. 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.

Read the AODA Alliance’s February 25, 2021 Letter to Ontario Minister of Health Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities   Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

February 25, 2021

To: The Hon. Christine Elliott, Minister of Health

Via email: Christine.elliott@ontario.ca

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

We write to alert you to yet more serious concerns about the Ontario plan for critical care triage in the event that Ontario hospitals get overloaded and start to ration or triage life-saving critical care. With this letter, we enclose a new report that the AODA Alliance has prepared which independently reviews those plans. It identifies several serious new problems with the Ontario critical care triage plan, beyond those which we have earlier alerted you to in our unanswered letters, those being our September 25, 2020 letter, our November 2, 2020 letter, our November 9, 2020 letter, our December 7, 2020 letter, our December 15, 2020 letter, our December 17, 2020 letter and our January 18, 2021 letter.

We urge the Ford Government to immediately act to eliminate from Ontario’s critical care triage plan the problems we have identified up to now, and in this new report. Minister, this is an issue of life-and-death for Ontario’s most vulnerable people. It deserves a response from you.

For example, this new report reveals that a seriously troubling and disability-discriminatory online “Short Term Mortality Risk Calculator” has been created for triage doctors to use to calculate whether a patient should be refused life-saving critical care they need and want, if critical care triage must take place. It is available at www.stmrcalculator.ca It should immediately be shut down.

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

This new report also shows that the troubling legal defence strategy that has been crafted to defend Ontario’s critical care triage plan is fatally flawed. It shows as well that this plan goes even further to in effect make each critical care triage physician a law unto themselves, dressed up as precise and objective medical science. We ask you to rescind that plan, and to ensure that any critical care triage plan or protocol is free of constitutional and human rights violations.

There has been no public announcement that critical care triage is already occurring in Ontario. To the contrary, The Government has said that it has not been occurring. Yet this report reveals that such triage in some form may already in effect be taking place in Ontario, according to a January 23, 2021 statement by one of the senior physicians involved in Ontario’s critical care triage planning. We ask you to immediately look into this, make all the relevant information public, and take steps to ensure that critical care triage does not occur until and unless it is free of these serious problems.

Please end your Government’s protracted secrecy in the area of critical care triage. This report reveals that senior physicians whom The Government has entrusted in this area have emphasized the importance of openness and transparency. For example, please make public now and provide us with the Bioethics Table’s secret January 12, 2021 report on critical care triage to The Government.

Minister, please now meet with us. Have your Ministry officials, responsible in this area, meet with us. Do not simply slough us off on the Bioethics Table. It is not the body making the decisions here. Moreover, the Bioethics Table has unwisely rejected some key parts of our input without explanation, without justification and without passing along the advice on this topic that it evidently opted to reject or disregard.

Please stay safe.

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC:

Premier Doug Ford premier@ontario.ca

Helen Angus, Deputy Minister of Health helen.angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility Raymond.cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services todd.smithco@pc.ola.org

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission cco@ohrc.on.ca

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

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

February 25, 2021

 Part I Introduction

This is an independent report on Ontario’s plans for how to ration or “triage” critical medical care, if the COVID-19 pandemic overloads Ontario hospitals. If there are more patients who need critical care than there are critical care beds, equipment and medical staff to treat them, Ontario has a plan in place for deciding which patients will be refused the critical care they need. To refuse critical care to a patient needing it is akin to a death sentence.

This report reveals new and seriously troubling problems with Ontario’s critical care triage plans. The AODA Alliance believes that this report is the most thorough and up-to-date external examination of Ontario’s current critical care triage plans.

The AODA Alliance and other disability advocates, such as the ARCH Disability Law Centre, have previously unearthed, documented and revealed to the public several serious problems with Ontario’s critical care triage plans. In this report, the AODA Alliance reveals and documents even more previously undetected serious problems. These bear on patients with disabilities during the COVID-19 pandemic. That pandemic has already imposed disproportionate hardships on people with disabilities.

It would be dangerously wrong to think that concern about Ontario’s plans for critical care triage can be relegated to the back burner because COVID-19 infection rates are reducing and the COVID vaccine is arriving. This is because there is a real risk of another surge. The much-more contagious new COVID-19 variants are spreading. Rolling out COVID vaccinations are delayed. There is uncertainty whether those vaccines immunize people from these new variants. Future Government loosening of public lock-downs risks further spread of the virus.

At a January 23, 2021 critical care triage training webinar for doctors and hospitals (discussed further below), a key player in the Government’s critical care triage planning, made it clear that such triage is not some remote hypothetical. Dr. Andrew Baker, Incident Commander on the Ontario Government’s Critical Care COVID Command Centre, said:

“This (i.e. triage) may already be happening. I’ve heard from many people, including leaders from O.H. (note which may refer to Ontario Health), From Steini Brown (Which appears to be a reference to Adalsteinn (Steini) Brown, Dean of the Dalla Lana School of Public Health who has been advising the Ontario Government on health issues) presenting on CP24, and others, that the net effect of the system right now is that people, threatened at better than 20% 12-month survival, are not getting usual access to care, with a measurable negative impact on the morbidity and mortality. So we’re being told that this type of decision, these decisions about redirecting incremental resources, are already happening, with a real impact on people’s outcome.”

Over the past ten months, the AODA Alliance and other disability advocates and organizations with whom we are allied, have been trying to discover the critical care triage plans are for Ontario, trying to review these plans once unearthed for possible problems, trying to raise our serious concerns with the Ontario Government, and trying to bring these issues to the public’s attention through conventional and social media. This effort has been made far more difficult because the Government has maintained a pervasive cloak of secrecy over its critical care triage plans and has been substantially unwilling to talk to disability community representatives about its critical care triage plans.

This report’s new findings are summarized as follows:

  1. It would be dangerous to put concern about Ontario’s critical care triage plans on the back burner, just because COVID infection rates are reducing and the vaccine is rolling out. There is a real risk of another COVID-19 surge. As well, a senior Government advisor says triage may already be taking place.
  2. Ontario created a seriously flawed, disability-discriminatory and highly-objectionable online calculator to compute who will be refused needed life-saving critical care during triage or rationing of critical care.
  3. There is a danger that emergency medical technicians (EMTs) could improperly refuse to give a patient critical care they need and want, before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  4. This report reveals the transparently erroneous legal strategy devised for defending the legality of Ontario’s critical care triage plan. By this strategy, doctors, hospitals and the Ontario Government would argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they do so following the January 13, 2021 Critical Care Triage Protocol. They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This report identifies all the fatal flaws in that defence strategy.
  5. Merely proclaiming that human rights should be respected during critical care triage, and that there is no intent to discriminate, provides no defence to the disability-discriminatory January 13, 2021 Critical Care Triage Protocol
  6. This report reveals an even greater risk under Ontario’s critical care triage plan that each triage doctor can unintentionally become a law unto themselves than the AODA Alliance had previously discovered.
  7. Ontario’s critical care triage plan risks unfairly and arbitrarily providing different amounts of oversight of triage decisions from hospital to hospital.
  8. The training recently provided for frontline critical care triage doctors wrongly minimizes the enormity of their triage decisions and the importance of being legally accountable for them.
  9. A substantially incorrect idea of “equity” was presented to frontline doctors being trained to make critical care triage decisions.
  10. Some of those central to the planning for critical care triage in Ontario call for openness and transparency –something that this report shows to be missing.
  11. The Health Ministry still refuses to talk to the disability community about critical care triage plans, but is clearly talking to the health sector and their insurance companies.
  12. Doctors, hospitals and emergency medical services, should beware the protocol, directions and training they have been given on Critical Care Triage. They would use them in action that endangers patients life at their peril.

An important starting point for this report is that it may become necessary for Ontario to have rationing or triage of critical care services. The AODA Alliance does not dispute this, and has never disputed this. The AODA Alliance continues to argue that more can be done to avert it becoming necessary.

However, if it were to become necessary, Ontario must have a plan and protocol in place to govern it. The AODA Alliance has never disputed the need for such a plan and protocol. To the contrary, it is essential that Ontario be well-prepared for this possible nightmarish development.

If critical care triage is to occur, it must not be left to each triage doctor to decide based on their own beliefs or preferences which patients should be refused critical care, and on what basis. Our core message is that any critical care triage plan and protocol must be legal. They must fully comply with the human and constitutional rights of patients.

One cannot simply dismiss all concerns about unlawful discrimination in critical care triage plans or protocols on the grounds that any such triage “discriminates”, because some patients will be denied life-saving critical care they need. All laws give something to some people, but not others. What the Charter of Rights and the Ontario Human Rights code forbid is discrimination on certain illegal bases, such as one’s disability.

Here is how this report proceeds. Part II of this report gives a detailed background to the events leading to the creation of Ontario’s current critical care triage plans. It identifies the key organizations connected with the Ontario Government that are involved with creating this plan. It summarizes the serious problems with Ontario’s critical care triage plans from a disability perspective, that the AODA Alliance and others have previously revealed.

Readers who already know that background should skip right to Part III. It is the report’s meat and potatoes. Part III describes and documents each of the additional serious problems with Ontario’s critical care triage plan that the AODA Alliance here reveals. These are principally revealed from an analysis of the January 13, 2021 Critical Care Triage Protocol that has been sent to all Ontario hospitals, and the January 23, 2021 webinar on that protocol which teaches frontline doctors and hospitals how, when and why to implement that protocol, if Ontario hospitals are directed to ration or triage critical care services due to the COVID-19 pandemic. That webinar is the fullest peak behind closed doors to see what is in store under Ontario’s critical care triage plan.

The AODA Alliance puts the Ontario Government, and those designing and planning to implement Ontario critical care triage plans, on notice about these serious new concerns. We call on them to immediately talk to us and other disability advocates about these concerns, and to immediately rectify all these serious problems.

The AODA Alliance is a non-partisan grassroots disability coalition. It advocates for accessibility for 2.6 million Ontarians with disabilities, including in the health care system. It has been focusing for the past eleven months on the disproportionate impact of COVID-19 on people with disabilities and advocating for measures to protect their urgent needs during the pandemic. Its efforts on this issue are documented on the AODA Alliance website’s health care page.

 Part II Background to This Report and to Ontario’s Critical Care Triage Plans — for Newcomers to This Issue.

 1. Key Timelines, Organizations, Documents and Sources

In February 2020, Ontario’s Health Ministry secretly decided that Ontario needs to develop a critical care triage protocol, in case one is needed because of the impending COVID-19 pandemic. The Government secretly appointed an external advisory group of physicians and bioethicists to design it. That is the Government’s “Bioethics Table”.

In February and March 2020, the Bioethics Table secretly prepared an original triage protocol, the March 28, 2020 critical care triage protocol. It was not made public. Ontario Health, part of the Ontario Government, secretly sent it to all hospitals in the early 2020 spring.

Word of that protocol quickly leaked to the disability community. On April 8, 2020, over 200 disability organizations sent the Ontario Government and made public an open letter, that decried the March 28, 2020 protocol as disability discriminatory.

In an effort to swiftly offer constructive ideas, the AODA Alliance prepared and made public its April 14, 2020 Critical Care Triage Discussion paper. That Discussion Paper identified key ingredients that a critical care triage protocol should include.

On April 21, 2020, the Ontario Government publicly claimed that the March 28, 2020 critical care triage was only a “draft” even though it was not marked “draft”. It undertook that the Ontario Human Rights Commission and community advocates would be consulted on Ontario’s critical care triage plans.

During the 2020 summer, under the leadership and initial coordination of the Ontario Human Rights Commission the Bioethics Table held several virtual meetings with the AODA Alliance, the ARCH Disability Law Centre and a group of other disability advocates and experts. These disability advocates described serious human rights concerns with Ontario’s plans for critical care triage from the disability perspective. The Bioethics Table shared a revised draft critical care triage protocol. The AODA Alliance made it public on its website on July 16, 2020.

On September 11, 2020, the Bioethics Table submitted a report to the Ontario Government, recommending a framework for conducting critical care triage. The Government did not make this secret September 11, 2020 report public until December 10, 2020, and even then, only after repeated pressure. The Bioethics Table, the Ontario Human Rights Commission, the AODA Alliance and many others had called for the Government to immediately release the Bioethics Table’s September 11, 2020 report.

The Government continued to conceal other documents created in connection with that report, despite our requests to see them all. The Government had shared the Bioethics Table’s September 11, 2020 report and related secret documents with health care providers over the 2020 fall, at the same time as it was steadfastly refusing to show it to the public or to the disability community.

On October 29, 2020, the Ontario Government quietly rescinded the March 28, 2020 critical care triage protocol. Disability community advocates, supported by the Ontario Human Rights Commission, had been calling for months for it to be rescinded. The fact of its rescission was not made public until the Government was pressed on this topic in the Legislature’s Question Period on November 5, 2020.

On December 17, 2020, the Government-appointed Bioethics Table held a rushed virtual roundtable discussion on its just-released September 11, 2020 report on critical care triage. This included the AODA Alliance, some other disability community representatives and some representatives from racialized and Indigenous communities. Those community representatives united in stating that this rushed meeting did not give them enough time to read and fully analyze the September 11, 2020 Bioethics Table report, that their review to date revealed that it has serious human rights problems, and that they all wanted a further chance to give direct input on critical care triage plans. No such further opportunity for input has been provided.

At that roundtable, Dr. Andrew Baker, incident commander with the Ontario Critical Care COVID Command Centre, said a new approach to triage, embodying the concerns raised at the roundtable (with which he seemed to find real merit), would in effect have to wait for a future time. That would have to be after this pandemic is over.

On January 12, 2021, the Bioethics Table rendered a new report to the Ontario Government. This report is secret. The AODA Alliance has never seen it.

On January 13, 2021, a new critical care triage protocol was sent to Ontario hospitals. The Government did not make it public. It quickly made its way to the AODA Alliance and others.

The AODA Alliance made the January 13, 2021 Critical Care Triage Protocol public on the AODA Alliance website on January 18, 2021.

The January 13, 2021 Critical Care Triage Protocol states that it was approved by the Ontario Critical Care COVID Command Centre. The Ontario Government has declined to answer an AODA Alliance inquiry about the membership and mandate of the Ontario Critical Care COVID Command Centre. It is an internal Government-mandated body that evidently has been given provincial authority to decide what the critical care triage protocol should be, and when critical care triage should take place in Ontario. It has operated in secret, not in public.

On January 23, 2021, Critical Care Services Ontario held an online webinar to train frontline doctors and hospitals on why, when and how to conduct critical care triage under the January 13, 2021 Critical Care Triage Protocol. Critical Care Services Ontario is mandated to coordinate critical care services in Ontario, according to its website.

The AODA Alliance happened to learn about this webinar, and that it is posted on Youtube at https://www.youtube.com/watch?v=xatBYgXZHt4. That webinar’s contents are an important source for this report’s findings. Presenters at that webinar included key players in the design, oversight and defence of Ontario’s critical care triage plan.

The AODA Alliance has written the Ontario Health Minister Christine Elliott seven times over five months, detailing serious concerns with the Government ‘s critical care triage and asking important questions. None of these letters have been answered, 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 and its January 18, 2021 letter to Health Minister Christine Elliott.

A comprehensive “paper trail” of disability advocacy efforts on this issue from the perspective of patients with disabilities is available on the AODA Alliance website’s health care page. Some key documents, such as the January 13, 2021 Critical Care Triage Protocol, the Bioethics Table’s spring-summer draft of that protocol, and the Bioethics Table’s September 11, 2020 critical care triage report to the Ontario Government were all publicly posted for the first time on the AODA Alliance web page. It appears that the public needs to visit such public interest websites as the AODA Alliance website and the ARCH Disability Law Centre website, rather than the Ontario Government’s website, to find out what is going on in this important area of provincial public health policy, for which the Ontario Government is responsible.

 2. Previously-Revealed Fundamental Problems with the Ontario Government Plans for Critical Care Triage

This report identifies new and additional problems, previously unrevealed, with the Ford Government’s plans for critical care triage in Ontario, if hospitals cannot cope with a surge in the number of patients needing life-saving critical care. These new concerns supplement and build upon the important and disturbing problems with the Government’s critical care triage that the AODA Alliance and other disability advocates have revealed and publicized over the last ten months. Those earlier concerns are summarized as follows:

  1. The Government has not shown that there is valid legal authority to issue a direction to hospitals and physicians on critical care triage. A memo to hospitals cannot direct who lives and who dies. This is an important part of the rule of law in a democracy. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol directs disability discrimination against some patients with disabilities who need critical care. It directs the use of the “Clinical Frailty Scale” as a tool for assessing some patients’ eligibility to be refused critical care. That Scale has doctors assess whether patients over age 65 with a progressive disease and needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol does not provide due process to patients needing critical care and who are at risk of being denied that care due to critical care triage. They have no right of input into the decision, and no avenue for a swift appeal if doctors decide to refuse them the life-saving critical care that they need to survive. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The January 13, 2021 Critical Care Triage Protocol would in effect make each triage doctor a law unto themselves, with sweeping subjective discretion over who should live and who should die, dressed up in the garb of impressive medical jargon. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The Ontario Government’s senior medical advisors on critical care are urging the Ontario Cabinet to pass an executive order that would suspend the Health Care Consent Act. They want this so doctors could unilaterally withdraw critical care from a patient already receiving it, without that patient’s consent, in order to give that critical care to another patient. The AODA Alliance and other disability advocates have strenuously objected to any such suspension of the Health Care Consent Act. The AODA Alliance has warned that for the Government to try to do so, including if it tried to do so by an order of the Ontario Cabinet, would be tap dancing in a constitutional minefield. See e.g. the February 1, 2021 AODA Alliance Update.

 Part III Cataloguing Serious New Problems with Ontario’s Critical Care Triage Plan

  1. Ontario Has Created a Seriously Flawed Online Calculator to Compute Who Will Be Refused Needed Life-Saving Critical Care During Triage

We were deeply troubled to discover from the January 23, 2021 webinar that Ontario has created an online “Short Term Mortality Risk Calculator.” It is supposed to calculate whether a patient will be refused needed life-saving critical care, if critical care triage is directed. It is at the website www.STMRCalculator.ca.

A triage physician can input information about a patient who needs critical care into this short term mortality risk calculator. The calculator then coldly spits out a number that gives the patient’s triage priority score. That number will determine whether a patient is eligible for critical care they need, or whether they will be refused critical care, depending on the level of critical care triage that has been directed. During the January 23, 2021 webinar, Dr. James Downar, reportedly the author of the January 13, 2021 Critical Care Triage Protocol and a member of the Bioethics Table, stated:

“We’ve actually also got a calculator now that’s online that helps calculate these and gives the sort of –you can punch in some clinical information. It will give you the answer.”

The Government and its Ontario Critical Care COVID Command Centre and other related health bodies have never announced to the public the existence of this online calculator, to our knowledge. We have seen no indication that it has been successfully field-tested and/or peer-reviewed.

This short term mortality risk calculator is seriously objectionable. First, it wrongly and disrespectfully reduces a life-and-death decision about a seriously ill human being to a cold, digitized computation.

It risks giving triage doctors a false sense that it is the calculator that decides who lives and who dies. That wrongly diminishes a triage doctor’s needed alertness to their responsibility for their action. It is vital for triage doctors to own the triage decisions they make and feel fully responsible and accountable for them. This report later shows further concerns in that regard.

Second, this calculator creates the dangerous false impression that such a life-and-death assessment can in fact accurately and safely become an objective mathematical calculation. Medical science is far from that precise, when it comes to predicting whether a critically ill patient will die within the next year. On the January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, head of the Michael Garron Hospital’s Intensive Care Unit, 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 accurately 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.”

Further supporting the serious concern that that this is not a precise mathematical calculation, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, conceded during the January 23, 2021 webinar that triage physicians will be “estimating” a triage patient’s likelihood of surviving for a year after receiving critical care. Dr. Downar said:

“Ultimately this boils down to an individualized assessment for each person. This is not a checklist that applies to everybody, but simply an approach to estimating short term mortality risk, and using tools as appropriate to do that. The clinical criteria the prioritization criteria are based on published data where possible, and in some cases, based on expert opinion, based on the peer review that Andrea referenced.”

Dr. Downar also earlier said during that webinar:

“The focus of this is on the mortality risk at twelve months, not the estimated survival duration for an individual, right? So we know that it can be challenging to predict survival for individuals, but when we are looking at populations based on published data, we can I think be reasonably more sure about risks and certainly within the ranges, the broad ranges that we are talking about here.”

Third, this online calculator uses criteria that are transparently disability discriminatory, contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Under the heading “Frailty”, for patients over 65 with a terminal illness and expected mortality of more than six months, the calculator uses the disability-discriminatory Clinical Frailty Scale, described earlier in this report. As noted earlier, that Scale inquires about the number of activities of daily living that a patient can do without assistance, including dressing, bathing, eating, walking, getting in/out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, and handling their own finances. The calculator increases the patient’s frailty rating accordingly.

The AODA Alliance and the ARCH Disability Law Centre have amply shown the Government and the Government’s external advisory Bioethics Table that the Clinical Frailty Scale is replete with unjustifiable disability discrimination. See e.g. the AODA Alliance‘s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table. Neither the Bioethics Table nor the Ministry of Health, nor Ontario Health nor the Ontario Critical Care COVID Command Centre have presented any convincing arguments to disprove that the Clinical Frailty Scale is disability discriminatory, contrary to the Ontario Human Rights Code and the Charter of Rights.

That alone would be fatal to this online calculator. However, making this worse, the AODA Alliance has discovered that the online calculator also uses other disability discriminatory criteria. We have not had a full opportunity to investigate the entire calculator from this perspective. However, as an example, for “Cancer”, the calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

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

The online Calculator does not alert doctors to these as serious human rights concerns. A physician using this online calculator could commit flagrant disability discrimination, without being alerted to this, and thinking it is totally appropriate conduct.

The foregoing examples of disability discrimination contradict the clear statement of the Government’s Bioethics Table in its September 11, 2020 report to the Ford Government as follows:

“To emphasize: the existence of disability must not be used as a criterion on which to deny critical care.”

That important sentence is strikingly missing from the later January 13, 2021 Critical Care Triage Protocol. It is not known whether the Bioethics Table later retreated from that important sentence in its later secret January 12, 2021 report to the Government, which the AODA Alliance and the public have not seen.

Fourth, the Bioethics Table and the Ontario Government including its Ontario Critical Care COVID Command Centre, never consulted the AODA Alliance or, to our knowledge, other disability advocates and experts, on this online calculator. The AODA Alliance has no knowledge whether the Government or its Bioethics Table or its Critical Care COVID Command Centre ever consulted the Ontario Human Rights Commission on this online calculator.

 2. There is a Danger that Emergency Medical Technicians (EMTs ) Could Wrongly Refuse to Give a Patient Needed Critical Care Before the Patient Even Gets to the Hospital – Improper Backdoor Trickle-Down Triage

Normally, emergency medical technicians (EMTs) may start critical care supports for a patient en route to hospital, if the patient needs it. The public expects that if an ambulance arrives in an emergency to help a person, the EMTs will do all they can to help save the patient’s life. The public does not expect that an EMT would unilaterally refuse to provide a life-saving measure that the patient needs, out of some thought that a triage doctor at the hospital might later feel trapped by the law that does not allow them to withdraw that critical medical care without the patient’s consent.

Yet to our total surprise and deep worry, almost one year into the COVID-19 pandemic, the AODA Alliance learned from watching the January 23, 2021 webinar that if critical care triage is directed for Ontario, instructions may have been given by someone (we don’t know who) to frontline EMTs or may in future be given to them, to the effect that EMTS should not administer some critical care to some patients who need it. Yet such back-door or trickle-down critical care triage should not take place., Certainly EMTs should not be directed to engage in such denial of critical care where needed, absent the patient’s consent to its being denied.

Speakers at the January 23, 2021 webinar, who are involved in planning Ontario’s regime for critical care triage, raised a concern that if EMTs start to apply critical care to a patient before they reach the hospital, then the hospital would not be able to withdraw that critical care afterwards unless the patient consented to its withdrawal. This is because of the Health Care Consent Act.

During the webinar, questions were asked about using the January 13, 2021 triage protocol where a patient earlier had critical care started “in the field” (i.e. before they get to hospital). And where that patient is then brought to the hospital’s emergency room, already receiving critical care. The concern was expressed that under the January 13, 2021 triage protocol, a doctor cannot withdraw critical care from a patient who is already receiving it, unless that patient consents to its withdrawal. In response, Dr. James Downar (a central figure in the design and public defence of Ontario’s critical care triage plan) said:

“Add this to the long list of very good reasons why we should have an executive order to allow withdrawal, for allowing for equity. Because we need to, I think, decrease the consequences of people, you know, mistakenly intubating somebody who should not have been prioritized. You want to make it very easy for people to offer critical care, and not make the mistake of not offering it and only finding out later, because they made a hurried decision, that they should have. That’s what you don’t want.

The ability to withdraw is the ability to offer in marginal or higher mortality risk cases. That’s the way to look at it, right? That’s why it would result in better outcomes for everybody.

I know that the ambulance services emergency services are aware of this document. (Evidently referring to the January 13, 2021 triage protocol) We had conversations with them early in the spring. And they have a sort of surge practices already available where they are going to look at situations where, you know, certain types of resuscitation, they would not initiate resuscitation in certain scenarios. And they are aware of this document, and, to the best of my knowledge, they certainly did in springtime align their practices – Their standards would change in a way that would reflect this document.

So, for example, if we had a maximum surge, that they would not attempt certain types of resuscitation, you know, cardiopulmonary resuscitation, and lower levels of surge, they would resuscitate people only in situations like having, you know, witnessed arrest and shockable rhythm, for example.

To your point, they should be aligned, and they are, emergency services are aware.”

Dr. Downar was asked if that information would be available. He responded:

“I can’t speak for the emergency services but I can speak to them.”

If there have been any such critical care triage secret directions to EMTs or to emergency services, or if any are being designed or contemplated, we and the public do not know what these directions are, or who is designing, approving them or issuing them. We and the public do not know who would make the potential life-and-death decision to refuse a roadside patient the critical care that they need, or whether there would be any notification to the patient or their family that this backdoor or trickle-down triage is even taking place. If, as Dr. Downar suggested, such directions to EMTs are aligned with the critical care triage protocol that has been sent to hospitals for use by physicians, they would then be replete with the same disability discrimination and due process problems that the AODA Alliance and others have revealed in Ontario’s past and present critical care triage protocols.

We have seen no prior Government policy, public statement, discussion or consultation on this. The Bioethics Table never raised it with us in any of its several virtual meetings with disability advocates and experts last summer. The Bioethics Table had ample opportunity to raise this. To the contrary, all previous discussions have been premised on the idea that critical care triage decisions would be made by doctors and would be made for patients who are already in hospital. The Bioethics Table’s September 11, 2020 report to the Ford Government includes the following statement, which does not state that EMTs might take any part in deciding whether to withhold needed critical care from a patient, on the grounds that the hospital might later want not to have to continue delivering critical care to that patient:

“”Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).

”      If critical care triage is initiated, this should not preclude the transfer of residents from long-term care facilities or other settings to acute care hospitals for acute care, even if their predicted short-term mortality risk would preclude them from receiving critical care.

”      Clinicians should not use prognostic tools for assessing predicted short-term mortality risk if they are not sufficiently trained and skilled with those tools.”

Here again, we do not know if the Bioethics Table withdrew that advice in its subsequent secret January 12, 2021 report to the Ontario Government. For its part, the AODA Alliance foresaw the risk of this backdoor or trickle-down triage and alerted the Government about it back on April 14, 2020. We then warned about the risk that EMTs might decline to treat a patient with a disability out of some thought that they would later be refused critical care at the hospital during a period of critical care triage.

However, it was then unimaginable to us that such misconduct could take place as a calculated direction to all emergency services. The fear was that an EMT might take such backdoor or trickle-down triage decisions upon themselves. The AODA Alliance’s April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities included this:

“8. An ambulance is called to an apartment where a patient with disabilities has contracted COVID-19 and has severe symptoms needing hospitalization. The EMTs are reluctant to take the patient to the hospital. They figure that due to rationing or triage protocols and to that patient’s disabilities, the emergency room doctors would not likely give that patient a ventilator, due to shortage of ventilators.

The EMTs should never use the patient’s disability or their predictions about whether that might lead a doctor to refuse to treat them as a reason or factor to refuse to bring them to the hospital if they otherwise have symptoms warranting a trip to the hospital.”

Even if it were assumed that critical care triage directions should be issued to EMTs and ambulance services (which the AODA Alliance vigourously disputes), the disability community and the broader public should be properly consulted on this well in advance. The Ontario Government and any body involved with this issue should immediately make public any directions or draft directions to any ambulance services or EMTs on possible triage of critical care in advance of arriving at hospital, so the public can know what is now going on. The Government should now reveal who is formulating these instructions, who is approving them, who is issuing them, and what legal authority, if any, they have to do this.

The Government should immediately rescind any instructions that would allow EMTs or emergency services to refuse to provide critical care to a patient who needs it, and who has not agreed to it being withheld. The AODA Alliance reiterates in this context all the concerns regarding critical care triage that disability advocates and experts have been raising with the Government since last April. Supplementing these, there is a serious concern that EMTs have neither the training nor the authority to ration or triage needed critical care.

 3. The AODA Alliance Reveals the Transparently Erroneous Legal Strategy for Defending the Legality of Ontario’s Critical Care Triage Plans

 a) Unmasking the Legal Defence Strategy

The AODA Alliance has unearthed the fatally flawed legal defence strategy that the Government, its Critical Care COVID-19 Command Centre and the like have evidently crafted to fend off anticipated legal challenges to their plans for deciding which patients will be refused life-saving critical care if the COVID-19 pandemic overloads hospitals, and requires critical care triage. Critical Care Services Ontario, the Ontario Critical Care COVID Command Centre, the Bioethics Table, those leading the development and/or implementation of Ontario’s critical care triage plan, the Ontario Government, and those insurance companies and lawyers who would defend doctors and hospitals if sued, have a clear legal defence strategy. They plan to argue that they cannot be successfully sued if a patient dies from a refusal of critical care that they need, so long as the doctors and hospitals followed the January 13, 2021 Critical Care Triage Protocol

This legal defence strategy heavily relies on the January 13, 2021 Critical Care Triage Protocol ‘s title: “”Ontario Adult Critical Care Emergency Standard of Care.” If a patient dies and their family sues for negligence because they were the victims of a refusal of critical care they need during critical care triage, the hospital, its doctors and the Government would plan to argue that they cannot be successfully sued for the patient’s resulting death, because this document sets the “standard of care.” Courts should use this “standard of care “ to assess the medical professionals’ conduct.

They plan to argue that the standard of care is determined by doctors who are experts in the field, and not by lawyers or others. They would argue that the January 13, 2021 triage protocol is the result of expert medical advice and decisions by the Bioethics Table and the Ontario Critical Care COVID Command Centre that approved it. As long as doctors and hospitals stick to the January 13, 2021 triage protocol, they plan to argue that they have fulfilled their professional obligations, and are therefore immunized from being sued or the subject of complaint to the Ontario College of Physicians and Surgeons (CPSO), the body that licenses and regulates physicians.

The Government, the triage doctors and hospitals would plan to argue that the “standard of care that applies is one that is mainly based on the reasonable and accepted practice expected of a similarly trained doctor in similar circumstances. They would argue that a court relies on medical expert witnesses to identify that standard of care.

From the January 23, 2021 webinar, they clearly intend to argue that the January 13, 2021 Critical Care Triage Protocol is just such a standard of care. They would argue that it was created by medical experts for medical experts after a long period of research, investigation and consultation.

This legal defence strategy also serves the Ontario Government’s current political strategy. The Ontario Government is publicly running as far as it can from this issue. In contrast, the Quebec Government has publicly owned this issue by publicly posting a government decree that sets out the terms of critical care triage. By so recognizing, the AODA Alliance is not in any way endorsing Quebec’s Critical Care triage plan.

The Ford Government has repeatedly dodged media questions where it can on critical care triage plans. As noted earlier, the Government has refused to answer the AODA Alliance ‘s seven letters on critical care triage. The Government has not publicly discussed or debated this critical care triage issue in the Legislature, unless the Opposition asks the Government about it in Question Period.

Instead, the Government has in effect hidden behind its advisory Bioethics Table. The Government has repeatedly said that the Ministry of Health has not approved the January 13, 2021 triage protocol. To distance itself from the protocol, it claimed that that protocol instead is experts advising experts.

For example, a February 7, 2021 Globe and Mail news report stated:

“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.””

By that strategy, the Government appears to be trying to duck any responsibility for any decisions made that terminate a patient’s life because they are refused critical care during critical care triage. The Government would claim that it is the Ontario Critical Care COVID Command Centre, and not the Government, that decided whether, where and how critical care triage will occur. It would claim that the Ontario Critical Care COVID Command Centre is a table of medical experts, getting advice from the advisory Bioethics Table, also a table of experts. The Government can be expected to claim that it does not have to enact a triage protocol or under law, or indeed, to do anything, but let the medical profession just do its work.

This legal strategy was discovered by studying the January 23, 2021 CCSO webinar, and the Government’s few public statements on the triage protocol. During the January 23, 2021 webinar, lawyer Daphne Jarvis, who represents hospitals defending medical malpractice cases, said:

“…and as you’ve heard, it means that the focus shifts from optimizing individual care to maximizing population health outcomes. So, that concept may be new to us, and I can’t say that we have a body of Canadian case law specifically addressing pandemic critical triage situation. But there is a body of case law and medical legal literature that is broadly speaking relevant and that supports this concept.”

She also said:

“So, as you’ve heard, the document it’s more than one document, the document which outlines the emergency standard of care represents a very broad professional and expert consensus that has been developed over a long period of time with a huge amount of work, and it’s the emergency standard of care that assumes no change in the law.”

Ms. Jarvis went on to advise:

“So in short, it’s the best way to mitigate legal risk and to focus in a good faith effort to reduce morbidity and mortality.”

We add that the term “mitigate legal risk” that Ms. Jarvis used in the preceding quotation means “avoid someone successfully suing you.”

Similarly, speaking for the Canadian Medical Protective Association which defends and insures doctors who are sued for medical malpractice, Dr. Steven Bellemare explained:

“So why is the standard of care important? That’s because the standard of care is at the heart of any medical legal matter, be it a lawsuit or College complaint or hospital complaint. If you were to face a lawsuit with regards to a choice to not provide critical care services to a patient or for instance, the court would then seek to answer the question: ‘What would a reasonable physician, of similar training and experience, have done in a similar circumstance?’ That’s ‘s how it will determine whether or not there was negligence at play. And so the question then becomes what would other docs like in Critical Care have done in Ontario at that time, not in British Columbia, not in Quebec because every province is going to have a different approach to that.

So the standard of care usually is derived from expert opinion. We have experts, who are physicians of similar training and experience in similar circumstances as you would be, who provide opinions to the court as to what they would have done in that circumstance.”

Dr. Bellemare further explained:

“So the peer experts set the standard of care and the standard of care changes over time…. There are other ways that we can get to the standard of care, and that includes looking at guidelines or protocols that are published by various regulatory bodies like the CPSO in this case, or by national specialty societies. Finally, very rarely, governments can impose a standard of care. So that’ll be the case in Quebec, for instance, where their emergency triage protocol, if it goes into effect, will be done by decree of the Minister of Health, who will say from now on, this is how we are going to decide who gets access to care.

That’s not the case in Ontario. This is why we are talking about here the emergency standard of care and that’s not chosen by luck. Because this standard of care was created by your peers. It was created with input from critical care specialists. And as such, if and when the COVID-19 Command Centre decides to decree that it will go into place, it will be de facto the way your colleagues will expect you to behave in a time of crisis. And so it will be the way to practice. It will be the standard of care and what your peers will accept.”

 b) The Legal Defence Strategy is Fatally Flawed

Several reasons show why that legal defence strategy is fatally flawed. First, that legal strategy repeatedly and erroneously uses the label “standard of care” in order to try to position the January 13, 2021 Critical Care Triage Protocol as a big shield for doctors, hospitals, and, potentially the Government itself. Yet the January 13, 2021 Critical Care Triage Protocol is in truth not a doctors’ “Standard of Care.” The fact that it uses that title, and that the January 23, 2021 webinar presenters repeatedly use that term, does not make it a true standard of care.

In the law of negligence, the concept of a “standard of care” exists for a court to use to measure whether a physician was negligent:

  1. When the doctor diagnoses a patient and decides whether that patient needs medical treatment. The doctor must not be negligent when deciding what the patient’s condition is;
  1. When the doctor decides what treatment to prescribe for the patient. The doctor must not be negligent in choosing the proper treatment to prescribe for the patient, and
  1. When the doctor is delivering a treatment to the patient that they have prescribed. The doctor must not be negligent when treating the patient e.g. when performing surgery.

The Government, doctors and hospitals rely on this “standard of care “ label and this defence strategy at their serious peril. It would be unwise for them to be lulled into a complacent sense that they have nothing to worry about, so long as they follow the January 13, 2021 Critical Care Triage Protocol and repeatedly call it a “standard of care.”

We contend that the concept of “standard of care “ does not apply to a doctor who is deliberately deciding not to give a patient critical care who is known as needing that care. That is instead a triage or rationing decision about allocating scarce public resources, denying that patient services which are covered and assured by provincial health insurance and the Canada Health Act.

This is not a situation where a doctor decides that the patient is not so sick that they need critical care. It is not a situation where the patient does not want to receive critical care. Rather, it is a given in these triage cases that the patient needs it and wants critical care.

If a patient needs critical care, a doctor’s triage decision to refuse them that care (over the patient’s objection) is not done to assess what that patient medically needs, or to deliver to the patient the treatment they medically need. Rather, it is a decision to deliberately allocate scarce resources to another patient instead.

We understand the vexing exigencies that this triage protocol tries to address. However, dressing that protocol up as a “standard of care” is incorrect, inappropriate and misleading. It is designed to secure for doctors, hospitals and possibly the Government the undeserved windfall of the maximum legal protection or immunity from lawsuits.

Second, this legal defence strategy violates the rule of law and basic democratic principles. It in effect turns the medical profession into a state within a state. Under it, democratically elected, politically accountable politicians would not make the rules on who will get a scarce government-funded resource, namely critical medical care, during triage. Instead, unelected physicians and bioethicists would decide whether there will be critical care triage, and if so, who will be refused critical care., They would decide this, behind closed doors, talking to whomever they wish, excluding whomever they wish, accountable to no one, bringing to bear no training or expertise in human rights or constitutional rights.

This wrongly pre-decides that doctors alone should make life-and-death decisions about allocating scarce publicly-funded resources, with no public accountability. Yet it is not for doctors to assign themselves this role, set the rules for their decisions, and to decide how much or how little public accountability they will have for deciding who shall be refused needed life-saving critical care. In a democracy’s publicly funded health care system, decisions on health care rationing criteria, roles and rules are ultimately the Government’s responsibility.

Ontario’s experience illustrates the dangers with this. The Government’s Ontario Critical Care COVID Command Centre secretly approved the January 13, 2021 Critical Care Triage Protocol. By this “standard of care” legal defence strategy, the Government in effect delegates the decision-making authority on this life-and-death issue to that unaccountable, secret body, without the Legislature ever granting it that authority. This is not the open and transparent approach to the COVID-19 pandemic that Premier Ford promised.

We have never been given a chance to meet with the Ontario Critical Care COVID Command Centre. On December 7, 2020, we wrote Ontario Health Minister Christine Elliott, asking who is on that body, and what their mandate is. The Government never answered.

That Ontario Critical Care COVID Command Centre no doubt relied on reports from the Government’s Bioethics Table. As noted earlier in this report, we have seen the Bioethics Table’s September 11, 2020 report, but not its subsequent January 12, 2021 report. Moreover, in its September 1, 2020 report, the Bioethics Table did not share with the Government or the Ontario Critical Care COVID Command Centre some key parts of our input– parts of our input with which the Bioethics Table evidently did not agree.

Third, that “standard of care” label, even had it correctly applied here (which it does not) cannot excuse or exempt doctors, hospitals or the Government from the serious Charter of Rights and Human Rights Code violations that the AODA Alliance and other disability advocates have raised with the January 13, 2021 triage protocol and with Ontario’s earlier March 28, 2020 triage protocol. The “standard of care” label, even if it were properly applicable here, does not immunize doctors, hospitals or the Government from their duty to comply with the Charter of Rights and the Ontario Human Rights Code.

Fourth, if the Bioethics Table gets its wish, and the Ontario Government tries to suspend the Health Care Consent Act so that doctors can withdraw critical care from a patient over that patient’s objection, the “standard of care” label, (even if properly applied here) would not exempt a doctor from the risk of committing a culpable homicide contrary to Canada’s Criminal Code by actively and intentionally withdrawing needed critical care from a patient over their objection.

Fifth, for this “standard of care” label to properly apply, it must first be shown that the physicians who developed it are in fact experts in the rationing of life-saving critical care. However, with great respect to them, they are not. They, and the Ontario medical profession have no prior expertise in rationing life-saving critical care, or in reliably predicting, for triage purposes, which patients will survive for a year after receiving critical care. This is not displaced by any bald claims that the January 13, 2021 Critical Care Triage Protocol is evidence-based.

Last summer, the Bioethics Table told us that Ontario’s medical profession has never before had to engage in critical care triage. It is our understanding that doctors are not trained to perform such critical care triage as part of their medical education. As well, neither physicians nor bioethicists must be trained in, nor claim to be experts in, fundamental human rights and constitutional law. That lack of expertise in human rights and constitutional law is amply evidenced by the various deficient critical care triage protocols and the arguments that have been made to defend them.

Sixth, it would be inaccurate to conclude that the January 13, 2021 Critical Care Triage Protocol is a compelling “standard of care” to which courts should defer, by virtue of the way it was developed. To justify it, it was said to be more than a decade in the making, the result of extensive work and consultation and reflecting the consensus of relevant expert opinion. During the January 23, 2021 webinar, that over-inflated and exaggerated claim was presented to attendees to support a call for frontline physicians to feel comfortable and safe when using that protocol. Dr. Andrea Frolic, a member of the Bioethics Table and identified as a key player in the January 13, 2021 Critical Care Triage Protocol’s development, said she would explain how the critical care triage protocol came about

“…to reassure you that this isn’t some form of moral improvisation but it’s a practice standard that is more than a decade in the making.”

It is an exaggeration to claim that this triage protocol was over a decade in the making”. The January 23, 2021 webinar was told that some work was done on this topic over a decade ago after the SARS outbreak. After that, no action on it was described at that webinar until last February. One year ago, when the COVID-19 pandemic was first emerging, the original March 28, 2020 critical care triage protocol was prepared in a rush and, we add, in secret.

The public was not given a chance for input into it. The public was not told that a critical care triage protocol was being developed, or that it had been sent to hospitals. The public only learned about it when it was leaked to some within the disability community. That led it to be publicly condemned by over two hundred disability organizations as disability discriminatory.

During the January 23, 2021 webinar, Dr. Andrea Frolic said that the January 13, 2021 Critical Care Triage Protocol was the result of consultations with the Ontario Human Rights Commission and community groups. This omits critical facts. For example, it leaves out the fact that the Ontario Human Rights Commission and community groups like the AODA Alliance publicly objected to key parts of the triage plan and the secretive way it has been developed.

After months of delay, the AODA Alliance and some other disability organizations got a chance to give input on an earlier draft of the critical care triage protocol last summer. It was good to have that opportunity. However it is now clear that several important issues, addressed in this report and elsewhere, were not identified with us for comment at that time e.g. the possibility of directions to EMTs to withhold critical care from some patients who need that care.

It is good that in its September 11, 2020 report to the Ontario Government, the Bioethics Table incorporated some of the input from disability advocates. However, the Bioethics Table rejected a number of key points that disability advocates presented. It similarly rejected key points that the Ontario Human Rights Commission publicly emphasized.

The Bioethics Table gave no reasons for doing so. The Bioethics Table’s September 11, 2020 report to the Government does not pass on to the Government the important points of input from the disability community and the Ontario Human Rights Commission that the Bioethics Table evidently rejected. Of the points that the Bioethics Table had incorporated, some did not find their way into the later January 13, 2021 Critical Care Triage Protocol. As noted earlier, the Government and its internal Ontario Critical Care COVID Command Centre did not consult us or the public on this topic. That meant that our input in key respects died before reaching those making the actual decisions on the design of Ontario’s critical care triage plan.

Seventh, any effort by the Ford Government to distance itself from this protocol is misleading and purely cosmetic. The Government appointed its advisory Bioethics Table. The Government undoubtedly created the Ontario Critical Care COVID Command Centre that approved the January 13, 2021 Critical Care Triage Protocol. The Ontario Ministry of Health is a partner in Critical Care Services Ontario. CCSO ran the January 23, 2021 webinar, and clearly is playing a role in the development and implementation of Ontario’s critical care triage plan.

Moreover, during that webinar, Dr. Andrea Frolic acknowledged that the earlier March 23, 2020 critical care triage protocol (the predecessor to the January 13, 2021 Critical Care Triage Protocol) was created under the leadership of herself, Dr. James Downar and others, and was then sent to all hospitals by Ontario Health. Ontario Health is a creation of and part of the Ontario Government. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…So under the leadership of James Downar, myself and others, a draft document was published by Ontario Health and sent to health care organizations back in March.”

  4. Merely Proclaiming that Human Rights Should Be Respected Is No Defence to a Disability-Discriminatory Triage Protocol

Part of the legal strategy to defend the January 13, 2021 Critical Care Triage Protocol is to argue that there is no intent to discriminate, and that to the contrary, the protocol states that human rights are to be respected in the triage process. For example, the February 7, 2021 Globe and Mail quoted a key member of the Bioethics table as follows:

“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.”

It is good that the full, lengthy January 13, 2021 triage protocol document (over 30 pages) includes some invocations of human rights. However, this does not immunize that protocol and hospitals or doctors who refuse a patient needed critical care from challenges under the Ontario Human Rights Code and/or the Charter of Rights.

First, the protocol’s references to protecting human rights provide no defence., This protocol first proclaims a commitment to human rights, but then goes on to direct human rights violations, e.g. by using the Clinical Frailty Scale. The Ontario critical care triage plan also urges use of the disability discriminatory Short Term Mortality Risk Calculator, addressed earlier in this report.

Second, it is no defence for the protocol’s authors to proclaim that there was no intent to discriminate. It is well-established that it is not necessary to prove an intent to discriminate, and that the absence of an intent to discriminate is no defence to a human rights or Charter equality rights complaint. We explained this in detail to the Bioethics Table last summer.

Third, as far as we have found, there is no explanation of human rights concerns or how to operationalize them in the triage process, in the all-important short checklists accompanying the January 13, 2021 triage protocol (which we expect is all of that document that busy triage doctors will have time to read) or in the online Short Term Mortality Risk Calculator (which, as detailed above, uses disability-discriminatory criteria) or the January 23, 2021 training webinar that instructed over 1,100 people including frontline doctors on using the January 13, 2021 critical care triage protocol and calculator.

In short, the January 13, 2021 critical care triage protocol’s statements about human rights are little more than window-dressing. They are aimed at outside bodies, seemingly to create the image that human rights are being protected in the critical care triage process.

At the same time, the core messaging to triage doctors is bereft of human rights content. It gives disability-discriminatory instructions to triage doctors. Those triage doctors are not told, for example, that the Bioethics Table, in its earlier September 11 Report, stated the following:

“However, the Bioethics Table learned through its consultation with disability rights experts that the use of CFS in the context of critical care triage raises significant concerns that persons with disabilities, many of whom may need assistance with activities of daily living, would score higher on the CFS than an able-bodied person and that this could lead to the over-triaging of persons with disabilities.”

 5. There is an Even greater Risk that Each Triage Doctor Can Become a Law unto Themselves than the AODA Alliance Previously Identified

As noted earlier, the AODA Alliance previously showed how the January 13, 2021 Critical Care Triage Protocol risks making each triage doctor a law unto themselves. The January 23, 2021 webinar reveals that this risk is even greater. This is so even though attendees at that webinar were erroneously told the opposite. Dr. Andrea Frolic said:

“It is protocol-driven rather than really leaving it up to the discretion of the bedside clinician.”

First, during that webinar, Dr. James Downar recommended that in advance of having to make critical care triage decisions, physicians should survey their hospital case load to identify those patients who might be likely to be subject to triage. He advised doctors to assess those patients’ short term mortality risk in advance. This is so that if those patients later get sicker and need critical care, those assessments will already be completed. Dr. Downar stated:

“So many people on this call who may not operate in the critical care area might be asking, okay, when to assess criteria. Do you only wait until they meet eligibility criteria. And it’s probably not a good idea to wait. Again, you should not be making triage or deprioritization decisions for people who have not had full assessments done. Informal or casual assessments may lack rigour, and they can anchor future decision-making, and so it’s probably best to avoid these sort of informal assessments.

But early assessments before they become critically ill will be very helpful for things like bed planning or establishing what information you might need to get some more certainty. So probably a good idea to try to get ahead in many cases, in some certain situations, and so this is less time pressure.

And so again you also don’t want to it on literally everybody, because these are not going to be easy conversations and they may compromise the therapeutic alliance and cause frustration. And it’s probably not feasible to do it for literally everybody admitted to hospital. So we’re just going to propose a bit of an approach for how to maybe prioritize your assessments. …

…I would say you’d probably best to focus on people who you think are most likely to deteriorate in the near future, or people who are most likely to actually be de-prioritized, depending on the level of triage that you’re at. So, everybody under your care, if for example you’re an MRP (i.e. most responsible physician) on the ward or in an emerge, it’s not a bad idea to think about just quickly scanning over and doing an initial assessment yourself of the criteria, and saying okay I think this person might meet Level 1 criteria for de-prioritization. I should probably, and if we’re at Level 1, triage now, I should probably take everybody who I think might be a Level 1, and make sure that I do formal assessments on those individuals first, so that if there is a decision to be made, it will be less time-pressure, and do a full assessment on those individuals.”

This may at first seem efficient. However, it gives a huge unmonitored, unaccountable and potentially arbitrary discretion to each doctor to unilaterally decide which patients to subject to an early short term mortality assessment. They could thereby formulate early first impressions of their patients for triage purposes.

Each doctor is left to decide for themselves who to subject to this pre-screening, and by what process. Once so pre-screened, a patient that is rated to have a high mortality risk might find themselves singled out for earlier triage from critical care, to their detriment, simply because they were unlucky enough to have a doctor earlier decide to pre-screen them.

The doctor need not forewarn their patients that they are being subjected to this pre-screening. There is no due process for patients to guide or constrain this process.

As a second way that triage doctors risk becoming a law unto themselves, during the January 23, 2021 webinar, Dr. Steven Bellemare said the intent of the January 13, 2021 triage protocol is to remove subjectivity from triage decisions. However he conceded that different people can read a document differently. From this, we conclude that there is in the protocol the very kind of subjectivity or wiggle room that can lead to different doctors taking different approaches to the same patient profile. Dr. Bellemare said:

“One of the key issues to consider is to think about whether or not the people in your hospital, your team, have clarity with regards to the intention of the emergency standard of care, and with regards to its application. And, you know, it’s meant to standardize the approach, but again, even though you may read the same document, people may think of it differently, and interpret it differently.

It goes a long way to help make sure that things are standardized and protocolized, but I think we have to think seriously about the value of simulation, in applying this protocol, and if you play a leadership team in your hospital, I would invite you to think about when is the time to actually think about running some drills, to apply this protocol. Because the time to start thinking about these issues is not when it is decreed that it is going into place, into application. It’s right now, which is why we’re having these conversations.

And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The element of subjectivity in this protocol contributes to each triage doctor becoming a law unto themselves, whether or not they are ever aware of this. It corroborates Dr. James Downar (reportedly the protocol’s author) telling us at meetings of the Bioethics Table last summer that there is subjectivity to the application of the protocol’s Clinical Frailty Scale, as the AODA Alliance confirmed in writing in its August 30, 2020 written submission to the Bioethics Table. That written submission states the following, which was immediately made public and whose accuracy has never been disputed:

“In discussions with some members of the Bioethics Table, Dr. James Downar candidly acknowledged that there is subjectivity in how the CFS would be applied to a specific patient. That is fatal to its use for critical care triage.”

This is also consistent with the opinion of the Michael Garron Hospital’s head of intensive care Dr. Michael Warren, quoted earlier in this report, who told CBC Radio with reference to this protocol that despite it, doctors may “guesstimate” and “improvise” when it comes to assessing whether a patient is likely to survive for more than one year. Of necessity, guestimates and improvisations provide ample room for subjectivity on the part of a well-intentioned triage doctor.

As a third development that contributes to each triage doctor becoming a law unto themselves, the January 23, 2021 webinar attendees were instructed that a patient’s admission to critical care is on a trial basis. Dr. Downar stated:

“For those who do meet prioritization criteria and again are admitted, they are admitted for a trial of critical care. Obviously, as we all would say, it is a trial, and you communicate appropriately.”

We dispute this characterization of critical care for a patient. Who is the judge of the “trial”? How long does the trial last? What appeal would there be if there is a dispute between patient and doctor over the “trial’s” duration, conduct or results? To characterize admission to critical care as a “trial” gives a sweeping, open-ended discretion to doctors to apply their own subjective standard to that “trial”.

As a fourth subtle feature that contributes to each triage doctor becoming a law unto themselves, the January 13, 2021 Critical Care Triage Protocol is ambiguous on the presumptions and burden of proof that a triage doctor should apply when making an assessment of a patient’s likelihood of surviving for at least a year after admission to critical care. Should the doctor presume that the patient will survive that long unless their clinical assessment proves otherwise? And if so, should the doctor not exclude the patient from critical care unless the doctor is certain that the patient has less than a year to live, upon admission to critical care? Does the patient being assessed for triage get the benefit of the doubt?

During the webinar, the room for a lack of clarity on this became clear to us, though not necessarily to the webinar’s attendees. Dr. Downar stated:

“It is entirely possible that you may not be certain and I think you need to be up-front and honest about that, right? If there’s a situation where you just don’t know, you don’t have enough information, it’s important to indicate that, and then also indicate that probably the person should be receiving critical care pending a re-assessment if it would be otherwise indicated, but also be very clear about what information you might need, and set on a path of trying to gather that information to resolve the uncertainty.”

While that describes Dr. Downar’s view, absent clarity on this, different doctors are free to set their own rules in their own minds on which presumptions to make and on the degree of certainty to require. That in turn gives each triage doctor even more discretion, further making each a law unto themselves.

One might at first think that it is not appropriate to talk about burdens or standards of proof when it comes to medical decisions. However, these are highly relevant. A patient’s access to life-saving critical care is on the line. Triage doctors are here being assigned to allocate this scarce resource, applying this triage protocol. That makes features like the burden and standard of proof entirely central for decisions that doctors would make.

A fifth subtle way that doctors can become a law unto themselves, each deciding critical care triage issues based on their own sense of who should get triaged out, emerges from the candid though seriously disturbing recognition during the January 23, 2021 webinar that if doctors are not given the power to withdraw critical care from a patient over their objection, some doctors will be more reluctant to give some patients needed critical care in the first place. Dr. Andrew Baker, incident commander on Ontario’s Ontario Critical Care COVID Command Centre gave this as a reason why the Ford Government should suspend the Health Care Consent Act – a measure to which we strenuously object.

What Dr. Baker described would be a subtle form of covert critical care triage. In it, a doctor departs from their traditional role of only deciding who gets critical care by an assessment of whether that patient needs it. There is no articulated standard to govern this. Thus, how much each triage doctor would do it is left to them to decide.

 6. Ontario’s Critical Care Triage Plan Risks Unfairly and Arbitrarily providing Different Amounts of Oversight of Triage Decisions from Hospital to Hospital

The AODA Alliance previously showed that the January 13, 2021 critical care triage protocol provides no due process for patients whose lives are at risk during critical care triage. Making this worse, we learned from the January 23, 2021 webinar that each hospital is free to decide whether critical care triage decisions will be made by two doctors or by a more thorough and extensive review team. As quoted at greater length earlier in this report, Dr. Steven Bellemare told the January 23, 2021 webinar attendees:

“And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The amount of scrutiny and oversight of critical care triage decisions therefore could arbitrarily vary from hospital to hospital. Patients facing such a danger to their life deserve greater and more consistent protection. The level of scrutiny should not be left to each hospital to decide. There is no indication that the Government will monitor these inconsistent practices from hospital to hospital around the province, or will report on them to the public.

  7. The Training for Frontline Critical Care Triage Doctors Wrongly Minimizes the Enormity of Their Critical care Triage Decisions and the Importance of Being Legally Accountable for Them

It is very harmful that the January 23, 2021 webinar minimized and downplayed for triage doctors the enormity of their decision to deny a patient needed critical care. It also harmfully encouraged them not to be mindful of the possible legal consequences of refusing a patient needed critical care. It is inevitably in the nature of critical care triage that if triage occurs, some patients will thereby die. However, it is harmful to dilute, downplay or minimize the doctor’s role in this. It is also harmful to minimize the importance of being alive to their legal accountability for it, or to use incorrect or misleading euphemisms to describe a triage decision.

As a first illustration, it was wrong for Dr. Andrea Frolic to encouraged doctors not to refer to a withdrawal of critical care from a patient as a “withdrawal” of care. Yet that is what it is. Dr. Frolic said:

“I really appreciated the comment in the Q and A that we should stop using the term ‘withdrawing care’. I really appreciate being called on, on that, because in fact care should never be withdrawn from patients. But certain treatments specifically invasive treatments might be withheld or withdrawn in this context, and I think one of the ways that we can continue to form trusting alliances with patients and families is by emphasizing what we will continue to. We will continue to medically manage patients. We will continue to palliate patients. We will continue to offer psycho-emotional support and comfort care.”

To a critical care patient who needs and is receiving critical care, a physician suddenly taking that critical care away from them over the patient’s objection is “withdrawing care.” The fact that the patient would then be offered a lesser level of care which can’t save their life does not change the fact that there has been a withdrawal of the very care they need and want to try to save their life.

As a second illustration of this, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, incorrectly said that refusing critical care should not be called an “exclusion.” He preferred to euphemistically describe this as prioritizing. Dr. Downar said:

“Again, we’ve looked over a number of different approaches to how to implement or how to protocolize a triage approach, and we tried to pull together, you know, sort of different ideas about, you know, sort of how to, you know, decide about risk, and benefit and how to try to make a system that that would be proportionate to need rather than more categorical in nature, while still being somewhat objective and rigourous. And this is what we came up with, was essentially to try to determine a prioritization system, and to be very clear, this is prioritization, not exclusion, right? And so we are at the point of running out of resources, nobody is excluded ever. They’re just a matter of prioritization.”

Yet contradicting this, if a patient is ranked too low for purposes of critical care triage, they would be excluded from receiving critical care. To the patient who is refused care, they don’t feel “prioritized”. They feel that they have been refused critical care and that they have been excluded from refusing critical care. Indeed, Dr. Downar later talked during the webinar about the fact that if critical care triage is to occur, certain groups of patients will be excluded or not given critical care, depending on the level of triage that is proclaimed.

As a third illustration, the webinar wrongly and subtly downplayed a triage doctor’s responsibility for the enormity of what a triage decision means for a patient who is denied needed critical care. Frontline doctors were told in effect in connection with their decision to deny a patient needed critical care that they should not feel a sense of “agency.” (I.e. that the doctor’s refusing a patient needed critical care, is an agent that contributes to the patient’s death) This was said to be because it is the pandemic and patients’ health problems that are killing people. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“And I think one of the most challenging things it puts us in the position very uncomfortably of imagining that we have personal agency in the life or death of patients that we are applying this protocol to. Of course, this is in some ways an illusion, because it is the pandemic that forces these decisions upon us as well as the underlying conditions of the patients and the resources available to us. But nevertheless, it can create a real sense of real moral, hazard and injury as we anticipate being the ones to ultimately render a decision.”

Dr. Frolic also stated:

“There’s no getting out of the experience of moral injury for us who are facing this pandemic, but our hope is that it can be mitigated by the knowledge that this is going to prevent deaths and that it is a standard of practice that is going to be used across the province. It’s very efficient to use once mastered and it allows you in conversations with patients and families to de-personalize the decision, and really to focus on caring for your patient knowing that in the end, you are not the one making the life-and-death decision based on this protocol.”

This dangerous and erroneous message is further driven home by the online Short Term Mortality Risk Calculator that the webinar encourages triage doctors to use. As addressed earlier in this report, that calculator depersonalizes and dehumanizes the critical care triage process by letting a triage doctor think that they just need to key into a website in their observations of a patient and then the calculator will decide on the patient’s short term mortality risk. That signals to the doctor that it is not the doctor’s ultimate decision, but that of an online calculator.

Of course, a patient’s physician is not responsible for the fact that the patient needs critical care to live. However, that does not reduce the fact that if a doctor decides to refuse critical care to a patient who needs and wants it, the physician’s decision contributes to accelerating that patient’s death.

It is important for any doctor making a life-and- death critical care triage death decision to feel a keen sense of responsibility for it, heightened by their awareness that there can be real legal consequences for it. Yet to the contrary effect, and as a fourth illustration, the January 23, 2021 webinar harmfully but authoritatively undermined any such sense of personal responsibility and legal accountability. The law exists to help make professionals like physicians feel that they can be held accountable for their actions. Yet speaking for the Canadian Medical Protective Association (CMPA), the company that provides physicians’ medical malpractice insurance and that funds their defence, Dr. Steven Bellemare told doctors in substance that as long as they follow the January 13, 2021 triage protocol they should not worry about being sued. Dr. Bellemare said:

“With that said, the message, the key message that I want you to hear today is that the CMPA is there for you. …We’ve always been there for you and we’ll continue to be there for you. So my message is really: Don’t worry about the potential for medical legal problems. Don’t worry about the potential for College complaint or a lawsuit, because sometimes, despite your best efforts, they can still happen. We will not let you down. We’ll be there to protect you at those moments.”

 8. A Substantially Incorrect Idea of “Equity” Was Presented to Frontline Doctors Being Trained to Make Critical Care Triage Decisions

The AODA Alliance raises a serious concern with the misunderstanding of “equity” during training given to frontline doctors on how to implement critical care triage in Ontario. During the January 23, 2021 webinar, presenters made several unparticuarlized references to the importance of “equity” in the critical care triage process. However, the only specific description of an “equity” concern was given by presenter Dr. Andrea Frolic. She said that if doctors cannot unilaterally withdraw critical care from a patient who is already receiving it, this could create an inequity between some patients already receiving critical care on the one hand, and patients in the lineup to get into critical care on the other. Dr. Frolic stated:

“So we want to recognize we are using the word triage to describe the situation about the allocation of a scarce resource in a way that is fair and transparent and equitable, and in alignment with this standard. So the STMR (i.e. the short term mortality risk ) and the tools are basically identical between the emergency standard of care and a protocol that would include the provision to allow for the rare occasion when withdraw of life-sustaining treatment in the ICU would be required without the consent of the patient and family.

To allow that particular aspect of the Health Care Consent Act would need to be altered by an executive order of Cabinet, and it was felt that while that executive order is not currently in place, it was very important to begin to socialize the emergency standard of care, the STMR tools, and to prepare our communities, our health care colleagues and health care system for implementation, whether or not the executive order comes down.

But there is a lot of concern around the province among clinical colleagues and advocates around really ensuring that there is equity in the application of this standard, recognizing that without the executive order, it could introduce inequity, where it would only apply to people waiting for critical care, or people who become critically ill later, and it doesn’t apply to people who already had the benefit of critical care, who happen to sicken earlier and are already in the ICUs there are many conversations happening with members of our Government and Critical Care Command Centre and other stakeholders to really try to work out how to proceed. But I think the important thing at this point is to continue to socialize the emergency standard of care, get familiar with these tools, prepare your organizations and your regions for implementation, and to stay tuned as Dr. Baker has indicated that when this document or this process does get triggered, there will be clear direction around how it gets implemented, where it gets implemented, and whether it is the emergency standard or the protocol that includes patients already in ICU.”

Yet this is not an actionable equity, equality or human rights issue under the Ontario Human Rights Code or the Charter of Rights. It is bad enough that doctors were not trained on true human rights issues that the Ontario critical care triage plan raises. It makes things worse that they are misdirected into this so-called “equity” issue which is far removed from the core equality and equity issues that should be their priority.

This misunderstanding was exacerbated during this webinar when Dr. Steven Bellemare told frontline doctors, being trained to conduct critical care triage, that the aim is to treat all patients the same when it comes to critical care triage. Yet the Supreme Court of Canada has made it clear for decades that at times, treating all people the same can itself result in unlawful discrimination. Similarly, Dr Bellemare said:

“ As Daphne was mentioning, not only is this emergency standard of care an important step in decreasing the medical legal risk that you might face as a physician or even that a hospital might face, but more importantly it’s also a critical way to ensure that every patient has a just, equitable and consistent access to a limited resource, which is critical care. And so by enacting an emergency standard of care, essentially, we’ll be making sure that everyone in Ontario on a population basis gets treated the same way.”

 9. Some of Those Central to the Planning for Critical Care Triage in Ontario Call for Openness and Transparency

Contradicting the Government’s relentless secrecy that has surrounded Ontario’s critical care triage plans over the past year (described above), medical leaders in the development and implementation of Ontario’s Critical Care Triage Plans have stressed the importance of openness and transparency in the approach to critical care triage in Ontario. For example, at the January 23, 2021 webinar, Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“I think it’s exceptionally important for our group and the system in general to be completely transparent. More problems are created by the appearance or the actual withholding of information than are created by sharing it openly.”

 10. The Health Ministry Still Refuses to Talk to The Disability Community About Critical Care Triage Plans, But is Clearly Talking to the Health Sector and Their Insurance Companies

From the January 23, 2021 webinar, we discovered that the Ford Government is 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 aim is to secure the maximum protection for doctors. Speaking for the Canadian Medical Protective Association, 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.”

This is consistent with the troubling agenda on this issue voiced by the Government-appointed Bioethics Table. Its September 11, 2020 report to the Ford Government on critical care triage called for triage doctors to be protected from liability for their triage decisions. Yet as noted earlier in this report, those making such life-and-death decisions should never feel that they are immunized from legal responsibility for their decision, whatever they do. That report recommended:

“The following steps should be immediately taken in order to further develop and implement an approach to critical care triage in the context of a major surge in demand in Ontario:

…Ensure liability protection for all those who would be involved in implementing the Proposed Framework (e.g., physicians, clinical teams, Triage Team members, Appeals Committee members, implementation planners, etc.), including an Emergency Order related to any aspect requiring a deviation from the Health Care Consent Act.”

 Part IV Conclusion — Doctors, Hospitals and Emergency Medical Services, Beware the Protocol, Directions and Training You Have Been Given on Critical Care Triage

Physicians, hospitals, emergency medical services and others should all beware the protocol, directions and training in Ontario on critical care triage. These all raise serious human rights and constitutional concerns. They follow them at their peril.

The AODA Alliance and other disability advocates have unsuccessfully tried to raise many such concerns with the Ford Government and with its advisory Bioethics Table. The Health Ministry won’t talk to the AODA Alliance or answer its detailed letters that raise concerns in this area. The Bioethics Table in substance rejected key parts of our advice, gave no reasons for doing so, and did not even communicate to the Government our advice that it rejected in its September 11, 2020 report to the Government.

Similarly, the Government’s Ontario Critical Care COVID Command Centre, which appears to be calling the shots on when and where critical care triage would occur, and how it is to be conducted, has similarly not spoken to us to get our input. It approved the seriously deficient January 13, 2021 Critical Care Triage Protocol.

It would be unwise for anyone to rely on the deeply-flawed legal defence strategy that has been formulated to defend the January 13, 2021 Critical Care Triage Protocol and those who implement it. The paper trail showing the serious problems with the Ontario plan for critical care triage is very public. It has been shared widely with the media.

It would similarly be very unwise to rely on the core messages conveyed to frontline doctors and hospitals in the January 23, 2021 webinar. That webinar tried to give its audience a strong sense that doctors and hospitals can with great confidence use the January 13, 2021 Critical Care Triage Protocol and rely on it as a defence to any legal responsibility for any deaths of patients that result. That webinar’s troubling message was that doctors should stick together as a team in this critical care triage effort, especially in the face of the expected anger and upset that will come from patients who are refused critical care and their families.

For example, the webinar’s co-host David Neilipovitz said this regarding the January 13, 2021 Critical Care Triage Protocol in the webinar’s introduction:

“We want you all of you to have reassurance in how it was created, with equity, fairness, proportionality, autonomy, accountability and other underlying principles directing its creation.”

Those watching that webinar would not have any idea that serious human rights and constitutional objections have been raised by disability advocates and by the Ontario Human Rights Commission to Ontario’s plan for critical care triage. They would have no idea that these have either been rejected or have not even been considered by those approving that plan, and that no reasons for rejecting these concerns have been given.

For example, the webinar’s 1,100 viewers would have no idea that serious human rights concerns about the use of the Clinical Frailty Scale as a triage tool have been raised by the AODA Alliance, by the ARCH Disability Law Centre, by the Ontario Human Rights Commission and by others. If physicians use the critical care triage short checklist or the online Short Term Mortality Risk Calculator, they will have no idea about these concerns, and will not be alerted to any human rights considerations that should come into their minds.

Doctors, hospitals and others should be worried about the seriously flawed legal defence strategy that has been formulated to respond to human rights and constitutional concerns, such as those raised by disability advocates. By this strategy documented earlier in this report, the January 13, 2021 Critical Care Triage Protocol will offer the world an outward-facing proclamation of a commitment to respecting human rights. “We are human rights-focused people,” Dr. James Downar told TVO’s The Agenda with Steve Paikin in a broadcast recorded on the day the January 13, 2021 Critical Care Triage Protocol was being sent to all Ontario hospitals.

Yet, a very different picture is painted by the key inward-facing tools that frontline doctors will use in busy emergency rooms during the chaos that would ensue if COVID-19 overloads hospitals so much that critical care triage is required, and the webinar that trains them on how to use those tools. The January 13, 2021 Critical Care Triage Protocol’s short critical care triage checklist, the Short Term Mortality Risk Calculator and the January 23, 2021 webinar that gives training on how to use them says nothing whatsoever about human rights, with one misleading exception. The webinar reports to attendees that the Ontario Human Rights Commission and advocacy groups were consulted in the protocol’s development, as if to boost that protocol’s dependability, without also explaining that the protocol includes features that the Ontario Human Rights Commission and advocacy groups had opposed. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…and so in the intervening months there has been very careful relooking and examination and redrafting of that early version to really align with professional ethics and principles. It’s meant extensive stakeholder engagement with the Ontario Human Rights Commission, advocacy groups and community stakeholders, as well as consultation with medical experts to really refine the core tool of this standard of care which is the Short Term Mortality Risk assessment.”

That webinar’s discussion of the law primarily as focused on “risk management”. As noted earlier, that is a euphemistic way of saying the risk that a doctor and/or hospital may get sued if a patient dies as a result of refusing them life-saving critical care they need. There was no discussion of the patient’s legal rights. This is a distorted one-sided perspective.

That webinar lulls attendees to think that the critical care triage protocol has been thoroughly lawyered, that a defence is available for its users, that maximum legal protections for them is being discussed with the Ford Government, and that they in substance need not worry about lawsuits. That is misleading and dangerous, from the perspective of patients. For example: Dr. Andrea Frolic said

“The CPSO has already come out publicly to support this emergency standard, if required. It has undergone extensive legal review by multiple legal experts. It is a peer-reviewed and evidence-based standard, and Dr. James Downar, who follows, will speak to the development and its enactment.”

Of the two lawyers and one CMPA doctor who jointly presented at the January 23, 2021 webinar, none had ever discussed with us any of the constitutional, human rights or other concerns that the AODA Alliance and other disability advocates have been raising over the past ten months with Ontario’s critical care triage plan. None of their comments during this webinar responded to or even mention any of these concerns.

Webinar attendees were repeatedly told that the January 13, 2021 Critical Care Triage Protocol incorporates principles of fairness, equity and ethics, among other things. Attendees were not told that disability advocates like the AODA Alliance disputed this, and have raised the serious concern, among other things, that it is utterly lacking in due process or procedural fairness for patients.

That webinar did not encourage provision of due process for patients and families facing the prospect of critical care triage. The webinar’s discussion of dealing with patients and families focused on clarifying during a patient’s admission to hospital if patient and family want critical care, and if not noting it on the file. It focused on giving the patient and family the bad news and reasons for it, once a triage decision was made to their detriment. There was nothing about getting the patient’s input during the triage decision-making deliberation.

That webinar properly conceded that there is a risk of triage doctors acting on unconscious bias when making critical care triage decisions in the absence of a proper triage protocol. However, in its effort to market the January 13, 2021 Critical Care Triage Protocol to frontline doctors and hospitals, it creates the incorrect impression that that protocol eliminates the danger of implicit bias. Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“And then of course if we don’t have a plan that has all the benefits that is included in this one, there’s the potential for implicit bias and divergent approaches.”

That webinar encourages doctors around Ontario to now run simulations of critical care triage decisions, in order to become familiar with using the January 13, 2021 Critical Care Triage Protocol. From the simulation example provided to the AODA Alliance and other disability advocates last summer at our request by the Bioethics Table (lead by Dr. James Downar, there is much room for all Ontarians to worry. At the very least, each hospital should immediately make public the content and results of such simulations. The Ford Government should track these, document the extent to which they lead to consistent or inconsistent results, and immediately make that all public in real time.

No doubt, frontline doctors do not want the responsibility of deciding who lives and who dies during critical care triage. There is no suggestion here that they do. However, that does not diminish any of the concerns that this report identifies.

AODA Alliance to Present Tomorrow at Virtual Meeting of the City of Toronto’s Accessibility Advisory Committee to Oppose Allowing Electric Scooters – Submits Brief Showing City Staff Reports Prove E-Scooters Endanger Public Safety and Accessibility for People with Disabilities, Seniors, Children and Others

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

AODA Alliance to Present Tomorrow at Virtual Meeting of the City of Toronto’s Accessibility Advisory Committee to Oppose Allowing Electric Scooters – Submits Brief Showing City Staff Reports Prove E-Scooters Endanger Public Safety and Accessibility for People with Disabilities, Seniors, Children and Others

February 24, 2021 Toronto: Tomorrow, starting at 9:30 am, the City of Toronto’s Accessibility Advisory Committee will consider if the City should take steps to allow electric scooters (e-scooters) in Toronto. The AODA Alliance is scheduled to make a deputation to the Committee. The meeting will be live-streamed at: https://www.youtube.com/channel/UCfe2rzOnQzgEDvNzRRPUJsA

The AODA Alliance filed a detailed brief with the Committee. It explains that e-scooters would endanger public safety, lead to injuries and even deaths, create barriers to accessibility for people with disabilities, and force the taxpayer to shoulder new financial burdens. A City Staff Report last summer showed that the supposed social benefits of e-scooters reducing road traffic and pollution are illusory and unproven.

“If e-scooters in Toronto get approved, Torontonians will suffer the personal injuries and get stuck paying the expenses while e-scooter rental companies, who are pushing for their product to get into Toronto, will earn the profits and try to dodge liability for injuries they cause,” said David Lepofsky, Chair of the non-partisan AODA Alliance that has spearheaded advocacy to protect people with disabilities from the dangers that e-scooters pose. “Those e-scooter corporate lobbyists will be laughing all the way to the bank while we are sobbing all the way to hospital emergency rooms.”

The AODA Alliance will applaud the Toronto Accessibility Advisory Committee for unanimously advising Toronto City Council back on February 3, 2020 that e-scooters should remain banned in Toronto. It will call on Mayor John Tory and City Council members to stand up for people with disabilities, seniors, children and others whom e-scooters endanger. They should stand up to the e-scooter corporate lobbyists that are inundating City Hall with a high-price feeding frenzy of backroom lobbying.

On October 30, 2020, a new report pulled back the curtain to reveal the stunning behind-the-scenes high-price feeding frenzy of back-room pressure that e-scooter corporate lobbyists have flooded City Hall with for months, relentlessly pressuring City Hall to pass a by-law to lift the much-needed ban on e-scooters. That report gave insight into why in the midst of the COVID-19 pandemic when other pressing issues should be a priority, Toronto’s municipal politicians are so seriously considering unleashing e-scooters in Toronto, despite their amply-documented dangers to people with disabilities, seniors and others. Key disability organizations vigourously oppose e-scooters, because of these proven dangers.

That report showed that entries in Toronto’s official Lobbyist Registry filling fully 73 pages, reveal that in just the two years from June 2018 to October 2020, eight e-scooter rental companies and three lobbying firms have documented fully 1,384 contacts with City Hall in person, by phone, by virtual meeting or by email. Amidst this onslaught of corporate lobbyists’ approaches are a dizzying 94 contacts with the Mayor’s Office, including 10 with Mayor Tory himself, 58 with the Mayor’s Senior Advisor, Legislative Affairs Daniela Magisano, 15 with Mayor Tory’s Director of Legislative Affairs Edward Birnbaum, 10 with his Chief of Staff Luke Robertson, and 1 with Mayor Tory’s Deputy Chief of Staff Courtney Glen.

Taking on the well-connected and well-funded corporate lobbyists at City Hall is quite a lopsided battle, but disability advocates are experienced with uphill battles. Corporate lobbyists are pressing for a pilot project in Toronto with e-scooters. This would be nothing less than a human experiment on the public and would endanger the public, including people with disabilities, without their consent. Human experimentation on non-consenting people is universally condemned.

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com Twitter: @aodaalliance

For more background, read the AODA Alliance ‘s February 22, 2021 brief to the Toronto Accessibility Advisory Committee. Visit the AODA Alliance e-scooters web page. Check out the AODA Alliance’s short captioned video that shows why Toronto should not allow e-scooters.

AODA Alliance Submits a Short, Punchy Brief to the Toronto Accessibility Advisory Committee, Calling for Toronto Not to Lift the Much-Needed Ban on Electric Scooters

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

AODA Alliance Submits a Short, Punchy Brief to the Toronto Accessibility Advisory Committee, Calling for Toronto Not to Lift the Much-Needed Ban on Electric Scooters

February 22, 2021

            SUMMARY

Today, the AODA Alliance submitted a short, strong brief to the Toronto Accessibility Advisory Committee, set out below. It calls for Toronto to leave in place the ban on electric scooters (e-scooters).

The Toronto Accessibility Advisory Committee will be holding a special virtual meeting on the issue of e-scooters, and the danger they pose for people with disabilities, seniors, children and others, on Thursday, February 25, 2021. The AODA Alliance will be making a deputation at that meeting, in support of our brief.

Please spread the word about this issue. If you have not already done so, please write or phone Toronto Mayor John Tory. Tell him not to allow e-scooters in Toronto. His email is mayor_Tory@Toronto.ca You can call his office at 416 397-2489.

Send this new brief to your member of Toronto City Council, if you live in Toronto. If you are going to make a presentation to the February 25, 2021 meeting of the Toronto Accessibility Advisory Committee, please endorse this brief.

Learn more about this issue by watching the AODA Alliance’s new short, captioned video on why we must not allow e-scooters in Toronto. Also, check out the AODA Alliance’s action kit on this issue. Share these resources with your family members, friends and social media contacts.

Visit the AODA Alliance’s e-scooters web page. As always, we welcome your feedback. Write to us at aodafeedback@gmail.com

Riding Electric Scooters in Toronto is Dangerous and Must Remain Banned

AODA Alliance brief to the Toronto Accessibility Advisory Committee on Electric Scooters

February 22, 2021

Via email: taac@toronto.ca

Mayor Tory and Toronto City Council must not unleash dangerous electric scooters in Toronto. Riding e-scooters in public places in Toronto is now banned and remains banned unless Council legalizes them.

The AODA Alliance strongly commends the Toronto Accessibility Advisory Committee for holding a special meeting on February 25, 2021, to obtain input from the disability community on the dangers that e-scooters present to people with disabilities, seniors, children and others. We congratulate the Toronto Accessibility Advisory Committee for unanimously recommending to Toronto City Council a year ago, on February 3, 2020, that e-scooters should not be allowed in Toronto.

It was wrong for the City of Toronto’s Infrastructure and Environment Committee to pay only token lip service to that wise recommendation, at its July 9, 2020 meeting. It was also wrong for fully 11 out of 23 members of City council to vote on July 28, 2020, against the City staff further investigating the dangers that e-scooters pose to people with disabilities, including Councilors Ainslie, Bailao, Colle, Crawford, Filion, Ford, Grimes, Holyday, Lai, Layton and McKelvie. The fact that 11 members of Toronto City Council openly voted against the needs of Torontonians with disabilities is very troubling. None of those Council members reached out to the AODA Alliance to learn of our concerns before voting against the City further investigating them.

A City Staff Report last July, supplemented by the new February 2021 City Staff report prepared for the Toronto Accessibility Advisory Committee (key excerpts are below), amply shows that e-scooters endanger public safety in communities that have permitted them. Riders and innocent pedestrians get seriously injured or killed. They especially endanger seniors and people with disabilities. Blind people like myself cannot detect silent e-scooters accelerate at us at over 20 KPH, driven by unlicensed, untrained, uninsured, unhelmeted fun-seeking riders. Left strewn on sidewalks, e-scooters are tripping hazards for people with vision loss and an accessibility nightmare for wheelchair users.

It is no solution to just ban e-scooters from sidewalks. Last summer’s City Staff Report and the new City Staff report prepared for the Toronto Accessibility Advisory Committee (the latter excerpted below), document the silent menace of e-scooters continuing to be ridden on sidewalks in cities that just ban them from sidewalks. Toronto would need cops on every block. Toronto law enforcement told City Councilors on July 9, 2020, that they have no capacity to enforce new e-scooter rules. City Staff reported last summer that no city that allows e-scooters has gotten enforcement right.

E-scooters would cost taxpayers lots. This would include new law enforcement, OHIP for treating those injured by e-scooters, and lawsuits by the injured. Toronto has far more pressing budget priorities.

With COVID raging, why is City Council even considering the legalization of dangerous e-scooters? The October 30, 2020 report, released by the AODA Alliance, revealed the stunning well-funded behind-the-scenes feeding frenzy of back-room pressure that corporate lobbyists for e-scooter rental companies have inundated City Hall with for months. The corporate lobbyists want to make money on e-scooter rentals, laughing all the way to the bank, while injured pedestrians sob all the way to hospital emergency rooms. 73 pages of entries in Toronto’s Lobbyist Registry, quoted verbatim in that report, reveal that in just over two years, a stunning 1,384 contacts by corporate lobbyists have taken place with City Hall from top to bottom in person, by phone, virtual meeting or email. Of those, as of last fall, there had been 94 such contacts with Mayor Tory or his office. There may be a couple of janitors the e-scooter corporate lobbyists have not reached yet.

City Council should not conduct an e-scooter pilot. A pilot to study what? How many of us will be injured? We already know they will, from cities that allowed them. It is immoral to subject Torontonians to a City-wide human experiment, especially without our consent, where we can get injured. The call for a “pilot project with e-scooters is just the corporate lobbyists’ strategy to try to get their foot firmly planted in the door, so it will be harder to later get rid of e-scooters.

Since we allow bikes, why not e-scooters? An e-scooter, unlike a bike, is a motor vehicle. They should not be exempt from public safety regulations that apply to motor vehicles. A person who has never ridden an e-scooter can hop on one and instantly throttle up to race over 20 KPH. A person cannot instantly pedal a bike that fast, especially if they have never ridden a bike. In any event, Toronto already has bikes and BikeShare. We do not need the dangers of e-scooters.

The July 2020 City Staff Report shows that e-scooters do not bring the great benefits for reduced car traffic and pollution that the corporate lobbyists for e-scooter rental companies claim.

Please make Toronto easier and not harder for those of us with disabilities to get around. Protect those who need safe, accessible streets and sidewalks, not the interests of corporate lobbyists.

Mayor Tory’s decision on this issue will strongly influence or decide how City Council votes. He should attend the February 25, 2021 special meeting of the Toronto Accessibility Advisory Committee, to hear directly from Torontonians with disabilities.

We need the Toronto Accessibility Advisory Committee to speak out again now, in as strong a voice as possible. On this issue, it is quite an uphill battle to get City Council to listen to us, over the call of the well-funded e-scooter corporate lobbyists. We need Toronto Mayor John Tory and all City Council members to stand up to those well-resourced and well-connected e-scooter corporate lobbyists, and to stand up for Torontonians with disabilities.

The e-scooter corporate lobbyists have proposed utterly inadequate solutions to the dangers that e-scooters pose. Those solutions are incapable of solving the problem. Only a ban on riding e-scooters in Toronto will provide us with the protections Torontonians deserve. The fact that the e-scooter corporate lobbyists have no effective solutions to offer, after operating e-scooters in several other cities around the world, proves that e-scooters should simply remain banned.

For example, geofencing cannot work. GPS technology is not precise enough to know when an e-scooter is ridden on a sidewalk, as opposed to on a road. Moreover, geofencing does not prevent any of the dangers that the silent menace of e-scooters present when ridden on the road, e.g. on roads where there is no sidewalk.

As another example, placing e-scooters in docking stations does not ensure that e-scooters are kept there. It does not prevent the dangers that e-scooters present when being ridden on roads, sidewalks or other public places.

We therefore call on the Toronto Accessibility Advisory Committee to pass a resolution along the following lines:

“The Toronto Accessibility Advisory Committee recommends to Toronto City Council that:

  1. The use of electric scooters in any public place should remain banned in Toronto, including riding an e-scooter that the rider rents, owns or borrows.
  1. No pilot project with electric scooters should be conducted in Toronto. City Council should not conduct an experiment that endangers Torontonians.
  1. City law enforcement officers should now enforce the ban on riding e-scooters in Toronto, in the case of anyone who now rides one.”

We want to make it clear that these references to banning e-scooters do not refer to the very different scooters that some people with disabilities use for mobility devices. Those mobility devices are now permitted and of course, should remain permitted.

Learn more about the dangers that e-scooters pose to people with disabilities, seniors, children and others, by visiting the AODA Alliance e-scooter web page and by watching the AODA Alliance’s new short, captioned video on this issue.

Learn more about the AODA Alliance by visiting www.aodaalliance.org, by following @aodaalliance on Twitter, by visiting our Facebook page at www.facebook.com or by emailing us at aodafeedback@gmail.com.

 Excerpts from the City of Toronto Staff Report to February 25, 2021, Special Meeting of the Toronto Accessibility Advisory Committee

 Excerpt 1

“According to the UDV (German Insurers Accident Research) in January 2021, e-scooter riders are 4 times more (or 400% more) likely than bicyclists to injure others, due to e-scooters being illegally ridden on sidewalks.

–          In 21% of e-scooter incidents with personal injury, the victim is not the rider, but another road user. This is due in part to e-scooters being ridden on sidewalks 60% of the time when they should be on the road or bike lane.

According to Austria’s Kuratorium für Verkehrssicherheit (KFV) in October 2020, 34% of 573 e-scooter riders observed at several Vienna locations illegally rode on the sidewalk.

  • Even if there was a bike path, 23 percent preferred the sidewalk. If there was only one cycle or multi-purpose lane, 46 percent rode on the sidewalk. If there was no cycling infrastructure, 49 percent rolled illegally on the sidewalk.”

 Excerpt 2

“Accessibility Feedback on Proposed Solutions…

Technologies are still emerging and not adequate yet:

  • Geofencing and other technologies to prevent sidewalk riding are not sophisticated enough and would only apply to rental e-scooters.
  • Docking stations for e-scooters has potential but is still in development.
  • Lock-to cables on e-scooters mean they could be locked anywhere (e.g., café fence/railing) including in spots blocking entrance access and paths of travel.
  • There is already a lack of bike parking so this would worsen the number of sidewalk obstructions on narrow and cluttered sidewalks.
  • If Bike Share Toronto were dockless, there would not be enough bike rings to lock the rental fleet… same for dockless rental e-scooter fleets.

Accessibility Feedback on Proposed Solutions

Not enough city resources for enforcement and infrastructure priorities

  • Oversight is very labour- and resource-intensive and depends on enforcement, which is already stretched or non-existent in parts of the City.

o      Licence plates on rental e-scooter fleets could help, but this is a reactive tool and would be a drain on city resources to monitor and enforce.

  • Bigger priorities for limited city resources.
  • Inadequate infrastructure is a bigger priority – not enough sidewalk space or accessible infrastructure; not enough bike lanes/bike lane space; and not enough public transit.
  • Importance of other city priorities before allowing something which poses a hazard and a nuisance for pedestrians and persons with disabilities.

Accessibility Feedback on Proposed Solutions

Impacts on seniors and persons with disabilities on sidewalks

  • COVID-19 has resulted in challenges for persons with disabilities, their caregivers and pedestrians who use sidewalks as a necessity and not for recreation.
  • Allowing e-scooters will pose hazards that affect persons with disabilities, seniors, their caregivers and pedestrians.
  • Risk of severe injury for seniors or persons with disabilities if tripping and falling or struck by an e-scooter.
  • Inability to identify e-scooter rider because of their speed, and that the person’s credit card on the app may not be the person riding the e-scooter.”

 Excerpt 3

“Canadian context – City of Calgary

  • No bike share. Only rental e-scooters allowed in Alberta.
  • Allows e-scooter riding on sidewalks.
  • 43% of 311 requests about bad behaviour or conflicts with pedestrians; 42% parking concerns. (total of 769 requests over the pilot period)
  • Now allowing e-scooter use on some roads to reduce sidewalk riding issues. Added slow speed zones and 30 parking zones (2.5% of riders ended trips in parking zones; 10% of the e-scooter fleet was deployed to the parking zones).
  • E-scooters to return via the procurement process. Lowered fleet cap from 2,800 (2020) to 1,500 (2021). Will require licence plates for enforcement.
  • “Likely that e-scooters have the highest rate of injury per transportation mode” but less severe. 43% of EMS e-scooter injuries required surgery (double that of EMS bicycles at 21%). 37% of severe e-scooter injuries had suspected intoxication.
  • 1,300 e-Scooter-related ER visits during the pilot period but may be over-inclusive of other devices referred to as scooters. 75 required ambulance transport, 5% were pedestrians injured.

Canadian context – City of Ottawa

  • No bike share. Personal use and rental e-scooters allowed on roads with max 50km/h limit, bike lanes, and trails/paths that are not National Capital Commission multi-use paths.
  • Lowered max. speed to 20km/hr for e-scooters from the permitted 24km/hr under the provincial pilot. 8km/hr for slow zones, e.g., transit malls/stations.
  • Piloted a fleet of 600 e-scooters with 3 vendors in 2020. Will increase the fleet cap to between 1,200 and 1,500 for 2021 and expand outside the Greenbelt (suburban area).
  • 76% of e-scooter riders surveyed used e-scooters for recreation; 2% to connect to transit (COVID-19 context)
  • Will pilot in 2021 via procurement process. Staff labour costs not included in cost-recovery. Considering designated parking areas. 69% of all survey respondents reported encountering improperly parked e-scooters.
  • No injury data collection with hospitals and not likely for 2021 given the pandemic.
  • Accessibility stakeholders were consulted and raised concerns about sidewalk riding and improper parking, especially barriers for persons with low vision or no vision.

Large Urban Peer Cities

  • Peer cities have banned rental/shared e-scooters from downtowns in Chicago and New York City.
  • No rental/shared e-scooters yet in places such as:
  • Montréal (not for 2021) or Vancouver
  • Massachusetts (e.g., City of Boston)
  • Pennsylvania (e.g., City of Philadelphia)
  • New South Wales (e.g., City of Sydney, Australia)
  • Scotland (e.g., City of Edinburgh), The Netherlands (e.g., Amsterdam), and
  • Others have banned or since banned them, e.g., Copenhagen (city centre), Houston, San Diego (boardwalk ban), etc.
  • NYC (outside of Manhattan only) and Transport for London (UK) pilots not yet underway.”

Short New Caption Video Explains Why Electric Scooters Endanger People with Disabilities and Others and Gives You Tips to Help Keep Them Out of Toronto – and — Sign Up to Tell the Toronto Accessibility Advisory Committee on February 25, 2021 Why Toronto Must Not Allow E-Scooters

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Short New Caption Video Explains Why Electric Scooters Endanger People with Disabilities and Others and Gives You Tips to Help Keep Them Out of Toronto – and  — Sign Up to Tell the Toronto Accessibility Advisory Committee on February 25, 2021 Why Toronto Must Not Allow E-Scooters

February 12, 2021

            summary

The COVID-19 pandemic continues to have devastating impact on our society. That should be the focus of 100% of the time of our political leaders. Despite this, it is inexcusable that The City of Toronto, among some other Ontario cities, continues to actively consider the possibility of unleashing electric scooters (e-scooters) on the city.

E-scooters would endanger the safety of people with disabilities, seniors, children and everyone else. They would create new accessibility barriers in public spaces impeding people with disabilities. Toronto already has two many disability barriers.

E-scooters are now banned in Toronto. That should continue. It is not good enough to say they cannot be ridden on sidewalks. We know that people will ride them on sidewalks, if they are just banned from sidewalks.

Help us convince Toronto Mayor John Tory not to allow e-scooters in Toronto. Email him: mayor_tory@toronto.ca and call his office 416 397-2489. Tell him to say no to e-scooters. We know the e-scooter corporate lobbyists have a feeding frenzy going on at City Hall. We need Mayor Tory to listen to us, the people, and not to give in to the corporate lobbyists.

Take your pick! Here are two easy ways you can help us stop Toronto from allowing e-scooters.

1. Watch and Spread the Word About Our New Short Captioned Video on How to Help Us Stop Toronto from Endangering the Public by Unleashing Electric Scooters

We just made public a brand new short captioned video about why we must stop e-scooters from being allowed in Toronto. This video is available at https://www.youtube.com/watch?v=PDdTJt9NK14&feature=youtu.be

Please watch this video and spread the word about it. AODA Alliance Chair David Lepofsky explains why e-scooters pose such a danger to people with disabilities, seniors, children and others, and why they would create new disability barriers. This video offers you very practical tips on how you can help us get Toronto to say no to e-scooters.

Post the link to this video on your website, on Twitter, on Facebook or on whatever social media you use.

2. Sign Up to Make a Presentation over Zoom or the Phone to the February 25, 2021 Special Meeting of the Toronto Accessibility Advisory Committee

On Thursday, February 25, 2021, starting at 9:30 a.m., The Toronto Accessibility Advisory Committee, appointed by the City of Toronto, is holding a special virtual meeting to receive feedback on the disability concerns with allowing e-scooters in Toronto. We encourage you to sign up to make a 5-minute presentation to that Committee. This would also help us oppose e-scooters in Toronto.

You can request a chance to speak to the Committee by emailing the Committee at taac@toronto.ca or phoning 416-338-5089. Below we set out the announcement of that meeting.

We commend the Toronto Accessibility Advisory Committee for holding this meeting. We urge Mayor Tory to log on to be a part of this meeting. As we said earlier, we need him to listen to us, and not only the corporate lobbyists who have had some 94 contacts with him or his office.

We also call on all members of Toronto City Council to log on to attend this meeting. It is especially important for 11 of them to do so, the 11 who voted on July 28, 2020 against having the City of Toronto further investigate disability concerns with allowing e-scooters in the city. Those 11 councilors who opposed us include: Councilors Ainslie, Bailao, Colle, Crawford, Filion, Ford, Grimes, Holyday, Lai, Layton and McKelvie.

It is great that one year ago, on February 3, 2020, the Toronto Accessibility Advisory Committee unanimously recommended to Toronto City Council not to allow e-scooters at all. The City of Toronto should have dropped its consideration of allowing e-scooters then and there. It is wrong for us to have to continue to try to oppose it, especially when we are faced with the ordeal of the COVID-19 pandemic.

We also invite you to check out the AODA Alliance’s Action Kit on how to help us keep e-scooters out of Toronto.

You can learn even more about our effort to protect people with disabilities, seniors and others from the dangers that e-scooters pose by visiting the AODA Alliance website’s e-scooters page.

            MORE DETAILS

 Announcement of Toronto Accessibility Advisory Committee February 25, 2021 Special Meeting

Originally posted at http://app.toronto.ca/tmmis/decisionBodyProfile.do?function=doViewMeetingNotice&meetingId=20132

NOTICE OF SPECIAL MEETING

TORONTO ACCESSIBILITY ADVISORY COMMITTEE

FEBRUARY 25, 2021

The Chair has called the meeting of the Toronto Accessibility Advisory Committee of Thursday, February 25, 2021 as a special meeting to hear a presentation from Transportation Services staff on Electric Kick-scooters (E-scooters). The details of the meeting are as follows:

Date:        Thursday, February 25, 2021

Time:       9:30 a.m.

Location:    Video Conference

Meetings of the Toronto Accessibility Advisory Committee will be held by electronic means and the proceedings of the Committee will be conducted publicly.

These measures are necessary to comply with physical distancing requirements and as civic buildings are closed to the public.

The video conference details will be published closer to the meeting dates.

The agenda will be distributed as soon as it is available. To view the most up-to-date schedule of meetings, please visit www.toronto.ca/council.

To provide comments or make a presentation to the Toronto Accessibility Advisory Committee

The public may submit written comments or register to speak to the Committee on any item on the agenda.

Written comments may be submitted by writing to taac@toronto.ca.

To speak to the Committee, please register by e-mail to taac@toronto.ca or by phone at 416-338-5089. Registered speakers will be provided with instructions on connecting to the meeting.

For further information or assistance, please contact Carol Kaustinen, Administrator, at 416-338-5089 or e-mail taac@toronto.ca.

CITY CLERK

January 6, 2021

Closed Meeting Requirements: If the Committee wants to meet in closed session (privately), a member of the Committee must make a motion to do so and give the reason why the Committee has to meet privately (City of Toronto Act, 2006).

Notice to People Writing or Making Presentations to the Committee: The City of Toronto Act, 2006 and the City of Toronto Municipal Code authorize the City of Toronto to collect any personal information in your communication or presentation to City Council or its Committees and Boards. The City collects this information to enable it to make informed decisions on the relevant issue(s). If you are submitting letters, faxes, e-mails, presentations or other communications to the City, you should be aware that your name and the fact that you communicated with the City will become part of the public record and will appear on the City’s website. The City will also make your communication and any personal information in it – such as your postal address, telephone number or e-mail address – available to the public, unless you expressly request the City to remove it.

Many Committee, Board, and Advisory Body meetings are available over the internet for the public to view. If you speak at the meeting you may appear in the video record of the meeting.

If you want to learn more about why and how the City collects your information, write to the City Clerk’s Office, City Hall, 100 Queen Street West, Toronto ON M5H 2N2 or call 416-338-5089.

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: aodafeedback@gmail.com 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.

For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility

January 29, 2021

            SUMMARY

Ontario is on the verge of a deeply troubling anniversary of Ontario Government inaction. This Sunday, January 31, 2021 marks the two year anniversary since the Ford Government received the blistering  final report of the Independent Review of the Implementation of the Accessibility for Ontarians with Disabilities Act. This report was written by former Ontario Lieutenant Governor David Onley.

In the two years since it received this report, the Ford Government has announced no strong, comprehensive plan to implement its recommendations. Most of its recommendations have not been implemented at all. This is so even though Ontario’s Accessibility Minister, Raymond Cho said in the Legislature on April 10, 2019 that David Onley did a “marvelous job” and that Ontario is only 30 percent along the way towards the goal of becoming accessible to people with disabilities.

It is a wrenching irony that this anniversary of inaction comes right after we celebrated the 40th anniversary of Canada’s Parliament deciding to include equality for people with disabilities in the Canadian Charter of Rights and Freedoms. That momentous breakthrough took place on January 28, 1981, 40 years ago yesterday. The Accessibility for Ontarians with Disabilities Act was passed in no small part to implement that constitutional right to equality for people with disabilities.

Over the past two years, the AODA Alliance has spearheaded grassroots efforts to get the Ford Government to come forward with a strong and comprehensive plan to implement the Onley Report. We have offered many constructive recommendations. We have also offered the Government our help. On Twitter and in our AODA Alliance Updates, we have maintained an ongoing count of the number of days that had passed since the Government received the Onley Report, keeping the spotlight on this issue. As of today, it has been 729 days.

The Government has taken a few new actions on accessibility since it took office in June 2018, the most important of which are summarized below. But these have been slow, halting and inadequate.

            MORE DETAILS

 1. What the Onley Report Found About the Plight of Accessibility for Ontarians with Disabilities

In February 2018, the Ontario Government appointed David Onley to conduct a mandatory Independent Review of the AODA’s implementation and enforcement. He was mandated to recommend reforms needed to ensure that Ontario becomes accessible by 2025, the goal which the AODA requires. Based on public feedback he received, the Onley report found that the pace of change since 2005 for people with disabilities has been “glacial.” With under six years then left before 2025 (now less than four years), the Onley report found that “…the promised accessible Ontario is nowhere in sight.” Onley concluded that progress on accessibility for people with disabilities under this law has been “highly selective and barely detectable.”

David Onley also found “…this province is mostly inaccessible.” The Onley Report accurately concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley Report said damning things about years of the Ontario Government’s implementation and enforcement of the AODA. He in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

The Onley Report made concrete, practical recommendations to substantially strengthen the Government’s weak, flagging AODA implementation and enforcement. Set out below is the Onley Report’s summary of its recommendations. Many if not most of them echo the findings and recommendations that the AODA Alliance submitted in its detailed January 15, 2019 brief to the Onley Review. Among other things, David Onley called for the Government to substantially strengthen AODA enforcement, create new accessibility standards including for barriers in the built environment, strengthen the existing AODA accessibility standards, and reform the Government’s use of public money to ensure it is never used to create disability barriers.

 2. What New Has the Ford Government Done on Accessibility Since the Onley Report?

It was good, but long overdue, that when releasing the Onley report back in March 2019, the Ford Government at last lifted its inexcusable 258 day-long freeze on the important work of three Government-appointed advisory committees. These committees were mandated under the AODA to recommend what regulations should be enacted to tear down disability barriers in Ontario’s education system impeding students with disabilities, and in Ontario’s health care system obstructing patients with disabilities. The AODA Alliance led the fight for the previous nine months to get the Ford Government to lift that freeze. Because of those delays, the Government delayed progress on accessibility for people with disabilities in health care and education. We are feeling the harmful effects of those delays during the COVID-19 pandemic.

The Ford Government’s main focus of its efforts on accessibility for people with disabilities has been on educating the public on the benefits of achieving accessibility for people with disabilities. That is work that the previous Government had been doing for over a decade. That alone will not bring about significant progress.

Since releasing the Onley Report, the Ford Government has held a couple of staged ministerial events, on January 28, 2019 and on October 29, 2019 (for which an inaccessible email invitation was sent), supposedly to announce a framework to implement the Onley Report. However they announced little, if anything, new. To the contrary, they focused on re-announcing things the Government had been doing for years, including at least one measure dating back to the Bob Rae NDP Government that was in power over a quarter century ago.

The Government has announced no plans to implement any of the recommendations for reform of accessibility standards from the Transportation Standards Development Committee (which submitted its final report to the Ontario Government in the spring of 2018, almost three years ago) or the final report of the Information and Communication Standards Development Committee (which submitted its final report some ten or eleven months ago).

The Government has had in hand for at least a month, if not more, the initial report of the Health Care Standards Development Committee. It must be posted for public comment. The Government has not posted it, or announced when it will do so. In the midst of this pandemic, swift action in the area of health care accessibility is desperately needed for people with disabilities and all Ontarians.

In the meantime, the one major new strategy on disability accessibility that the Ford Government has announced in its over two and a half years in office has been an action that David Onley never recommended and has, to our knowledge, never publicly endorsed. The Government diverted 1.3 million public dollars to the seriously problematic Rick Hansen Foundation’s private building accessibility “certification” program. We have made public serious concerns about that plan. The Government never acted on those concerns. Almost two years later, there is no proof that that misuse of public money led to the removal of any barriers in an Ontario building.

Despite announcing that the Government will take an “all of Government” approach to accessibility in response to the Onley Report, we have seen the opposite take place. TVO has not fixed the serious accessibility problems with its online learning resources, much needed during distance learning in this pandemic. The Government is building a new courthouse in downtown Toronto with serious accessibility problems about which disability advocates forewarned. During the pandemic, the Government has had circulated two successive critical care triage protocols which direct hospitals to use an approach to triage that would discriminate against some patients with disabilities and has refused to directly speak to us about these concerns. Over our objection, the Government has unleashed electric scooters on Ontarians, exposing people with disabilities to dangers to their safety and accessibility. This is all amply documented on the AODA Alliance’s website.

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

Take an all-of-government approach by making accessibility the responsibility of every ministry.

Ensure that public money is never used to create or maintain accessibility barriers.

Lead by example.

Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

  1. Reduce the uncertainty surrounding basic concepts in the AODA.

Define “accessibility”.

Clarify the AODA’s relationship with the Human Rights Code.

Update the definition of “disability”.

  1. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.

Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.

Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.

Include accessibility in professional training for architects and other design fields.

  1. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.
  1. Revamp the Information and Communications standards to keep up with rapidly changing technology.
  1. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.
  1. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.
  1. Develop new comprehensive Built Environment accessibility standards through a process to:

Review and revise the 2013 Building Code amendments for new construction and major renovations

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

  1. Provide tax incentives for accessibility retrofits to buildings.
  1. Introduce financial incentives to improve accessibility in residential housing.

Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units.

Offer tax breaks to boost accessibility in new residential housing.

  1. Reform the way public sector infrastructure projects are managed by Infrastructure Ontario to promote accessibility and prevent new barriers.
  1. Enforce the AODA.

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

  1. Deliver more responsive, authoritative and comprehensive support for AODA implementation.

Issue clear, in-depth guidelines interpreting accessibility standards.

Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.

Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

  1. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.
  1. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.

Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (“the Joint Committee”) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (“The disability amendment”)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

“Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities,” said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. “However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or “triage” of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.”

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities – something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For more background, check out:

  1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.
  1. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.
  1. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee – a decision the Federal Government reversed forty years ago today.
  1. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.

I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

  1. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.

Et en français, it est proposé

Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:

«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»

The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.

Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.

The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the

[Page 84]

New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.

Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will not—the intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems.

I am informed, for example …

Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.

The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.

Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.

Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.

Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.

As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.

I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to

[Page 85]

deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.

Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.

Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.

We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time.

The Joint Chairman (Mr. Joyal): Thank you very much.

Mr. Robinson to conclude.

Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.

Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words “or other authority” in which the person is involved, they would be protected in those circumstances?

Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.

You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary.

[Page 86]

So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings.

The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.

Mr. Robinson: Yes, Mr. Chairman.

Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.

I would also suggest that the words “other authority” have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.

I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.

Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read “ed or who is deaf” to make it conform technically with the page.

Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following:

ed or who is deaf has the right to the assistance of an”

I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait.

[Translation]

Senator Tremblay: Just to please my colleague who could very well read it himself.

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication.

… soit modifié par substitution, à l’article 14, de ce qui suit:

«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

Mr. McGrath, to propose the motion in the usual way?

Mr. McGrath: Thank you very much, Mr. Chairman.

I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment.

Mr. Chrétien: Yes. Yes.

Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.

However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.

It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.

Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless.

Mr. Crombie: Two good events on one motion. Two!

The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case.

An hon. Member: I am sure they heard footsteps.

The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote.

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

On Clause 15—Equality before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.

There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word “revised” on it, and the next subamendment in relation to the same main amendment is the one identified as CP—8(1), Clause 15, page 6.

So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6.

Monsieur Corbin.

  1. Corbin: Merci, monsieur le president.

Or, je propose

Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit:

«Droits à l’égalité

  1. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»

Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”

[Translation]

Thank you, Mr. Chairman.

Le coprésident (M. Joyal): Thank you, Mr. Corbin.

[Text]

I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6.

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

Mr. Epp: Just a point of order, Mr. Chairman.

I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?

The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.

Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment.

The Joint Chairman (Mr. Joyal): No, that is not the way.

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words “Every individual is equal» and substituting the following:

in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.

And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: “physical or mental disability,”; (c) adding to Clause 15(1) the following: “marital status,”; (d) adding to Clause 15(1) the following: “sexual orientation,”; (e) adding to Clause 15(1) the following: “political belief,”; (f) adding to Clause 15(1) the following: “lack of means”; and (g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal.

In French, Mr. Chairman, if you would like me to read this in French.

Il est proposé

Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:

  1. a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:

«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de

[Page 90]

toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»

  1. b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,»
  2. c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,»
  3. d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,»
  4. e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,»
  5. f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
  6. g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié.

Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».

Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party.

Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words “or age” in Clause 15(1) thereof and substituting therefor the following words:

age or mental or physical disability.

En français, il est proposé

Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»

Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment.

Now, I am not sure we can continue to take this prosperity any longer!

However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis-

[Page 91]

abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.

Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on.

Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay!

Mr. Chrétien: If I can have five minutes I will call the Prime Minister.

It is with great pleasure that I accept the amendment on behalf of the Government.

I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow.

You can have lots of beer on my health.

Thank you for your good representation.

The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.

I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.

Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.

Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.

I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.

We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted.

[Page 92]

Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.

Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.

Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.

The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.

I would invite you to restrict your remarks to the contents of the proposed amendment.

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: aodafeedback@gmail.com 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:”

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: aodafeedback@gmail.com 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

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

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

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

January 22, 2021

            SUMMARY

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

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

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

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

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

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

            MORE DETAILS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The National Post January 21, 2021

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

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

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

Author of the article: Sharon Kirkey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Email: skirkey@postmedia.com | Twitter: sharon_kirkey

Globe and Mail January 20, 2021

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

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

LES PERREAUX

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With a report from Jeff Gray in Toronto.

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

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

Dear Colleagues:

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

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

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

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

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

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

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

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

Thank you so much for all you are doing,

Andrew Baker Incident Commander Ontario Critical Care COVID19 Command Centre

More Media Coverage of Danger that the Ford Government’s Critical Medical Care Triage Poses for Ontarians with disabilities, But the Government Claims Protocol Does Not Come From the Government – So Does The Government Believe It Comes From Some Rogue Group Issuing Directions to Ontario’s Hospitals?

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

More Media Coverage of Danger that the Ford Government’s Critical Medical Care Triage Poses for Ontarians with disabilities, But the Government Claims Protocol Does Not Come From the Government – So Does The Government Believe It Comes From Some Rogue Group Issuing Directions to Ontario’s Hospitals?

January 20, 2021

            SUMMARY

Finally, the Ford Government’s deeply worrisome plans for rationing or “triage” of life-saving critical medical care are starting to get more media attention, including some focus on concerns from the disability community that those plans create the real danger of disability discrimination against some patients with disabilities. We here give you some examples, and our feedback. In most of these articles, the AODA Alliance was quoted.

As the following shows, the Government repeatedly claims the January 13, 2021 triage protocol is not a critical care triage protocol, and that it does not come from the Government. Yet a look at reveals that it certainly is a critical care triage protocol, authorized by the Government’s own Ontario Critical Care COVID Command Centre. If it doesn’t come from the Government, does it come from some rogue individual or group appointing themselves to dictate who lives and who dies if critical care must be triaged? What happened to the Ford Government’s promised openness and transparency when it comes to its response to the COVID-19 pandemic?

  1. On Thursday, January 14, 2021, CBC TV’s flagship national news program “The National” included, as its second news item, a report on plans for triage of critical care in Quebec and Ontario. The story included two quotations from AODA Alliance Chair David Lepofsky, identifying some of our major concerns on this front. You can watch it on Youtube at https://www.youtube.com/watch?v=_tySXRTHIGQ&feature=youtu.be We have also posted it with captioning at https://youtu.be/-LRyewJOKNQ
  1. On Tuesday, January 19, 2021, Toronto’s Zoomer Radio 740 Fight Back program hosted by Libby Znaimer included a half hour radio interview on the critical care triage protocol issue with AODA Alliance Chair David Lepofsky and Bioethicist Kerry Bowman. The audio of this is available as a podcast at https://zoomerradio.ca/podcasts/fight-back-on-zoomer-radio-podcast/the-provinces-directive-for-life-saving-care-january-19-2021/
  1. QP Briefing, a very influential publication of the Toronto star based at Queen’s Park, included an article dated January 18, 2021 on disability concerns with the January 13, 2021 triage protocol. That article reports, among other things:

“But the government said it’s only a draft, and hasn’t been approved or endorsed by the Ministry of Health.”

To the contrary, the January 13, 2021 triage protocol states that it is approved by the Ontario Critical Care COVID Command Centre. This appears to be the Government-designated body which is making the key decisions in this area. The Government has not told us who is on it, or what it’s mandate is. We’ve asked weeks ago!

The Government has not let us meet with the Ontario Critical Care COVID Command Centre. This body is, as far as we can tell, doing its life-and-death decision-making behind closed doors, with no public accountability. There is no showing that it has legal authority to make life-and-death policy for Ontario.

This news report gives a rare response on this issue from the Ford Government – one that is deeply disturbing. The article states:

“A source in Elliott’s office said the document “was not issued by the province and is guidance for the sector by the sector.”

The Ministry of Health said the province’s Bioethics Table has created separate guidelines that were “developed through rigorous review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, as well as community stakeholders, including disability rights organizations. Recent revisions include a more robust human rights and equity framing of the central issues,” ministry spoksperson David Jensen said in an email.

The document in question “has not been activated and has been released only for planning purposes to prepare for the possibility of a major surge in care, as an option of last resort, to be invoked only when all existing local and regional critical care resources have been used, all reasonable attempts have been made to move patients to or resources from areas with greater critical care resource availability, and only for as long as the major surge lasts,” Jensen said.

He said the ministry expects the Bioethics Table to keep consulting with stakeholders on the triage guidance.

Elliott’s office directed further questions to Dr. Andrew Baker, the critical care chief at St. Michael’s Hospital and incident commander of the Ontario Critical Care COVID-19 Command Centre. Baker did not respond to a request for comment.”

As for the Government’s misleading claims of ongoing consultations, the Government-appointed external Bioethics Table has had no contact with us or, to our knowledge, with others in the disability community advocating on this issue, since its rushed December 17, 220 roundtable. Since then, the following all took place in secret, with no consultation of us, and no disclosure to us:

  1. a) On January 6, 2021, the Government’s internal Ontario Critical Care COVID Command Centre secretly approved the all-important checklist for doctors doing triage, replete with deployment of the disability-discriminatory Clinical Frailty Scale.
  1. b) On January 12, 2021, the external advisory Bioethics Table sent the Government a new revised secret report on critical care triage. We have not seen it. Neither the Government nor the Government’s advisory Bioethics Table told us about it.
  1. c) On January 13, 2021, just as the Bioethics Table’s Dr. James Downar was telling The Agenda with Steve Paikin and all Ontarians that they are now consulting on this issue, the Government’s internal Ontario Critical Care COVID Command Centre secretly approved the January 13, 2021 triage protocol which was that day sent to all Ontario hospitals.

If the January 13, 2021 triage protocol was not sent to Ontario hospitals by the Government or on its behalf, who was the rogue person or group that has been sending it around the province? Why hasn’t the Government rescinded it, just as it belatedly rescinded the earlier March 28, 2020 critical care triage protocol?

Moreover, if this was not circulated by or on behalf of the Ford Government, that means there is no authoritative protocol for critical care triage in place. With the need for triage now “close” according to the Bioethics Table’s Dr. James Downar, it means doctors are left with no directions at all. This further risks each triage doctor being a law unto themselves, further endangering people with disabilities.

  1. A January 18, 2021 article by the Canadian Press’s Liam Casey was posted by various news outlets. The post of it in the January 18, 2021 St. Catherins Standard is set out below. That article includes this:

“Dr. Andrew Baker, the head of the critical care COVID-19 command centre and director of critical care at St. Michael’s Hospital, said the triage protocol contains information and tools that are a standard way for physicians to conduct an assessment for a patient upon arrival at an emergency department.

“They were shared with the critical care community as background only and to ensure a common approach across the sector, so physicians and other health professional staff can learn how to quickly operationalize an emergency standard of care for admission to critical care, if ever needed,” he said.

Baker said an emergency standard of care is not in place, but will be enacted if needed.”

This furthers the confusing double-talk emanating from the Government on this issue. The January 13, 2021 triage protocol embodies serious dangers of disability discrimination, as the AODA Alliance’s unanswered January 18, 2021 letter to Ontario Health Minister Christine Elliott. By circulating this document, the Government or its representatives are embedding improper discriminatory triage practices in the front lines of our health care system, to be ready for deployment should the COVID-19 pandemic require critical care triage. This must be rectified now!

  1. In a detailed January 18, 2021 report on CBC News online, the Government again tried to distance itself from the January 13, 2021 triage protocol without withdrawing it or offering to speak to any of us in the public about it. This article includes no feedback on concerns from the disability community, such as those from the AODA Alliance. That article included this:

“This morning, the Ontario NDP released a document they say is the province’s triage protocol. However, a spokesperson for the Minister of Health later said in an email to CBC News Monday that it is not a triage protocol but rather “guidance that originated from experts in the sector, for use by the sector.”

Dated Jan. 13, the 32-page document outlines the details and critical elements of the triage process should there be a major surge in COVID-19 patients requiring hospital care.

The documents say this should be considered only “as an option of last resort,” prioritizes care for those “with the greatest likelihood of survival.” It emphasizes the need for protection of individual human rights, non-discriminatory decision making and accountability.

The spokesperson said as of Monday, nothing has been issued or approved by the Ministry of Health.

“The expectation of the Ministry of Health is for the Bioethics Table to continue its engagement in consultations and discussions with various stakeholder groups,” the statement from the ministry reads.

In a news release, the NDP said the document “shows that the crisis in hospitals is out of control” while accusing Premier Doug Ford and his government of trying to keep it out of public view.

“Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret,” the NDP said.”

  1. In an earlier January 15, 2021 article on TVO. org Journalist Sarah Trick gave a good background to this issue pre-dating our chance to receive and review the leaked January 13, 2021 triage protocol. This otherwise excellent article inaccurately states that the Ford Government’s earlier March 28, 2020 triage protocol “was circulated to hospitals and community organizations for their feedback. “…the Government had it circulated to hospitals for feedback but most certainly did not circulate it to community groups for their feedback. It only reached the disability community last spring due to it being leaked to them.

In addition to the preceding news coverage, we have witnessed the following important step forward this week on this issue. On Monday, January 18, 2021, NDP Leader Andrea Horwath and NDP Disabilities critic Joel Harden released a helpful strong public statement about the January 13, 2021 triage protocol. It condemned that protocol, and explicitly endorsed the AODA Alliance’s concerns about it.

If you want more background on this issue, check out the following:

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

            MORE DETAILS

 QP Briefing January 18, 2021

Disability advocates sound alarm over draft triage guidelines

Jack Hauen

As COVID-19 patients pack Ontario hospitals, disability advocates say they have serious concerns over guidance for who should be prioritized for lifesaving care.

document leaked by physicians, dated Jan. 13, 2021, outlines a triage strategy for hospitals if there aren’t enough ventilators for everyone who needs one. The AODA Alliance, an advocacy group for people with disabilities, said parts of the guidance will prioritize lifesaving equipment for able-bodied people. But the government said it’s only a draft, and hasn’t been approved or endorsed by the Ministry of Health.

Doctors have spoken to the media about the overwhelming stress of planning to ration acute care — a situation that was practically unthinkable over the summer, but as cases have skyrocketed in the second wave, has become increasingly plausible.

The AODA Alliance said it’s concerned about the inclusion of the “clinical frailty scale,” which outlines how dependent people are on others to live their lives; and a patient’s 12-month likely survival as triage criteria.

AODA Alliance Chair David Lepofsky said the protocol also isn’t clear on whether doctors should withdraw critical care to make room for someone else. The Ministry of Health said the guidance does not involve withdrawal of care, but didn’t say whether care could be withdrawn based on other guidelines.

“Under the protocol, each triage doctor can end up being a law unto themselves. The protocol’s references to respecting human rights do not eliminate serious concerns about its authorizing disability discrimination,” Lepofsky said.

People with disabilities have been raising similar concerns since the beginning of the pandemic.

The Alliance also called for triage protocols to be enshrined in law, not a memo to hospitals, and slammed the Tories for keeping it from the public.

“The Ford government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor,” Lepofsky said. “The Ford government must now rescind and fix this discriminatory new triage protocol, and directly consult the public on this issue.”

Lepofsky wrote to Health Minister Christine Elliott on Monday asking her to fix the issues raised by the AODA Alliance.

“The Ontario government needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged,” he wrote.

Joel Harden, the NDP critic for seniors, accessibility and persons with disabilities, said he agrees with the AODA’s concerns.

“This shows that Ford knows how dire the situation is. And it leaves us all to ask why time and again, he keeps choosing half-measures,” said Harden. “There are people now forced to live in fear, believing that they may not get the care they deserve if they end up in the ICU.”

A source in Elliott’s office said the document “was not issued by the province and is guidance for the sector by the sector.”

The Ministry of Health said the province’s Bioethics Table has created separate guidelines that were “developed through rigorous review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, as well as community stakeholders, including disability rights organizations. Recent revisions include a more robust human rights and equity framing of the central issues,” ministry spoksperson David Jensen said in an email.

The document in question “has not been activated and has been released only for planning purposes to prepare for the possibility of a major surge in care, as an option of last resort, to be invoked only when all existing local and regional critical care resources have been used, all reasonable attempts have been made to move patients to or resources from areas with greater critical care resource availability, and only for as long as the major surge lasts,” Jensen said.

He said the ministry expects the Bioethics Table to keep consulting with stakeholders on the triage guidance.

Elliott’s office directed further questions to Dr. Andrew Baker, the critical care chief at St. Michael’s Hospital and incident commander of the Ontario Critical Care COVID-19 Command Centre. Baker did not respond to a request for comment.

NDP Leader Andrea Horwath said the guidance illustrates the “heart-wrenching choices” on the horizon if the government doesn’t add stronger lockdown measures like paid sick days, more aid for long-term care and more testing in workplaces and schools.

“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,” she said in a statement.

Horwath agreed with Lepofsky that the document should have been made public by the government.

This article has corrected a Ministry of Health error that stated the document dated Jan. 13 was created by the province’s Bioethics Table. It is in fact based on guidance from the Critical Care Command Centre.

St. Catharines Standard January 18, 2021

Originally posted at https://www.stcatharinesstandard.ca/ts/news/canada/2021/01/18/ontario-patients-to-be-ranked-for-life-saving-care-should-icus-become-full.html

Ontario patients to be ranked for life-saving care should ICUs become full

By Liam Casey The Canadian Press

Mon., Jan. 18, 2021

Hospitals in Ontario have received a much-anticipated document that lays out the criteria to be used if intensive care units fill up and medical resources are scarce.

According to the document, titled “Adult Critical Care Clinical Emergency Standard of Care for Major Surge” and prepared by the province’s critical care COVID-19 command centre – patients will be scored by doctors on a “short-term mortality risk assessment.”

“Aim to prioritize those patients who are most likely to survive their critical illness,” the document notes.

“Patients who have a high likelihood of dying within twelve months from the onset of their episode of critical illness (based on an evaluation of their clinical presentation at the point of triage) would have a lower priority for critical care resources,” the document reads.

It lists three levels of critical care triage:

“Level 1 triage deprioritizes critical care resources for patients with a predicted mortality greater than 80 per cent,” the document notes.

“Level 2 triage deprioritizes critical care resources for patients with a predicted mortality (greater than) 50 per cent.”

At Level 3 triage, patients with predicted mortality of 30 per cent – or a 70 per cent chance of surviving beyond a year – will not receive critical care. At this stage, patients who have suffered a cardiac arrest will be deprioritized for critical care, as their predicted mortality is greater than 30 per cent.

At this level, clinicians may abandon the short-term mortality predictions in favour of randomization, which the document notes is to be used “as a last resort” and should be conducted by an administrator, not by bedside clinicians.

The protocol, dated Jan. 13, says there are three steps on the road to critical care triage:

Step 1 says hospitals should build surge capacity.

In Step 2, “if demand still exceeds capacity, the hospital will adjust the type of care being provided to focus on key critical care interventions,” which include basic modes of ventilation.

Step 3 is the initiation of critical care triage. Once that process kicks in, “all requests for ICU admission are managed by an administrator on call who supports the bedside clinicians.”

At the moment, there are 416 patients with COVID-19 in ICUs in Ontario, which has a total of 1,800 total ICU beds.

Modelling released by the province last week show that about 700 ICU beds will be used by COVID-19 patients by the first week February.

Dr. Andrew Baker, the head of the critical care COVID-19 command centre and director of critical care at St. Michael’s Hospital, said the triage protocol contains information and tools that are a standard way for physicians to conduct an assessment for a patient upon arrival at an emergency department.

“They were shared with the critical care community as background only and to ensure a common approach across the sector, so physicians and other health professional staff can learn how to quickly operationalize an emergency standard of care for admission to critical care, if ever needed,” he said.

Baker said an emergency standard of care is not in place, but will be enacted if needed.

He said there is an “extensive, sophisticated, provincewide effort” to transfer patients out of hospitals that are at capacity.

Dr. Michael Warner, the medical director of critical care at Michael Garron Hospital in Toronto, said the hospital is running at 105 per cent capacity, but has cancelled surgeries in order to keep some spots open in the ICU.

“I sincerely hope we never need to use this because it is terrible for patients, terrible for their families, causes moral distress for health-care workers, and it’s something that we should do everything possible to avoid having to implement,” Warner said. David Lepofsky, the chairman of Accessibility for Ontarians with Disabilities Act Alliance, said the triage guidelines are discriminatory.

He pointed to the clinical frailty scale, a prognostic tool doctors use in cases of progressive illnesses to assess a patient’s general deterioration over time.

“This is disability-based discrimination and that’s against the law in the Constitution,” Lepofsky said.

January 18, 2021 CBC News Online

Originally posted at https://www.cbc.ca/news/canada/toronto/covid-19-ontario-january-18-2021-vaughan-1.5877320Province to open new hospital to ease pressure as Ontario reports 2,578 new COVID-19 cases

The provincial government is opening a new hospital in Vaughan to help relieve pressure on other facilities in the Greater Toronto Area.

The Cortellucci Vaughan Hospital was originally scheduled to open in early February as the first brand new hospital — not a replacement of an older facility or a merger with an existing facility — in Ontario in almost three decades. Premier Doug Ford made the announcement at a Monday afternoon news conference, saying it would open in “a few short weeks.”

“It’s like reinforcements coming over the hill,” Ford said, adding that the province is also adding 500 additional surge capacity hospital beds in Toronto, Durham, Kingston and Ottawa.

Health Minister Christine Elliott also said Monday that once the situation with COVID-19 has stabilized in the province, the hospital will open as originally planned.

“The idea is this hospital is going to be used … in order to take the load off of some other hospitals that are experiencing capacity challenges.” Elliott said.

The hospital will accept both COVID-19 and non-COVID-19 patients “based on the system needs during this surge,” a spokesperson for Mackenzie Health said in a statement to CBC Toronto.

The news comes as Ontario reported 2,578 additional cases of COVID-19 on Monday, as the number of patients with the illness who required a ventilator to breathe climbed above 300 for the first time since the pandemic began.

The new cases in today’s update are the fewest logged on a single day in about two and a half weeks. They include 815 in Toronto, 507 in Peel Region, 151 in both York and Niagara regions, and 121 in Hamilton.

New COVID-19 variant cases expected, Yaffe says

“Our health-care system continues to be strained with elevated numbers of people in hospital,” Dr. Barbara Yaffe, Ontario’s associate chief medical officer of health, said on Monday.

Thirty-one new outbreaks were reported as of Monday, Yaffe said, which was slightly lower than Monday of the previous week.

Yaffe said Ontario is reporting 15 new cases of the COVID-19 variant first identified in the United Kingdom, with the most recent case detected in London, Ont. in a patient with no known travel history.

“We do expect more cases to be identified in the weeks to follow as there is evidence of community transmission,” Yaffe added.

She said the data indicated that the new strain is 56 per cent more easily transmissible in comparison to other variants.

Other public health units that saw double-digit increases were:

Windsor-Essex: 97

Ottawa: 92

Waterloo region: 85

Halton Region: 79

Durham Region: 76

Middlesex-London: 67

Simcoe Muskoka: 65

Lambton: 52

Wellington-Dufferin-Guelph: 51

Eastern Ontario: 36

Southwestern: 31

Chatham-Kent: 29

Huron Perth: 15

Haldimand-Norfolk: 13

Brant County: 12

(Note: All of the figures used in this story are found on the Ministry of Health’s COVID-19 dashboard or in its Daily Epidemiologic Summary. The number of cases for any region may differ from what is reported by the local public health unit, because local units report figures at different times.)

The additional infections come as the province’s labs processed just 40,301 test samples for the novel coronavirus — tens of thousands fewer than there is capacity for in the system — and reported a test positivity rate of 6.6 per cent.

The seven-day average of new daily cases fell to 3,035. It reached a high of 3,555 on January 11.

Yaffe said Monday’s figures may have been low due to the number of tests processed Sunday, which was the lowest since Jan. 5.

Ontario’s Chief Medical Officer of Health Dr. David Williams said the current test positivity rate shows improvement from previous weeks when it would spike following weekends.

“The numbers are dropping, I take that as a sign that Ontarians are doing what we’re supposed to be doing,” Williams said on Monday.

But Williams said the province must cut its daily COVID-19 case counts to below 1,000 before lockdown measures can be lifted.

He called the goal “achievable” and said the last time the province saw similar daily case counts was late October.

Williams said he would also like to see the number of COVID-19 patients in intensive care units drop to 150 before lifting any restrictions.

Another 2,826 cases were marked resolved in today’s report. There are now 28,621 confirmed, active infections provincewide. The number of resolved cases have outpaced new cases on six of the last seven days in Ontario.

There were 1,571 total patients with COVID-19 in Ontario’s hospitals. Of those, 394 were being treated in intensive care units and 303 were on ventilators.

Revised projections released last week by the province suggested that hospitals, especially those throughout southern Ontario, risk being overwhelmed by COVID-19 patients in the coming weeks. The influx could result in doctors having to triage emergency patients, running the risk that some will not get a hospital bed when needed.

Ontario seniors ‘living in fear’ of COVID-19 feel forgotten in vaccine rollout plan

This morning, the Ontario NDP released a document they say is the province’s triage protocol. However, a spokesperson for the Minister of Health later said in an email to CBC News Monday that it is not a triage protocol but rather “guidance that originated from experts in the sector, for use by the sector.”

Dated Jan. 13, the 32-page document outlines the details and critical elements of the triage process should there be a major surge in COVID-19 patients requiring hospital care.

The documents say this should be considered only “as an option of last resort,” prioritizes care for those “with the greatest likelihood of survival.” It emphasizes the need for protection of individual human rights, non-discriminatory decision making and accountability.

The spokesperson said as of Monday, nothing has been issued or approved by the Ministry of Health.

“The expectation of the Ministry of Health is for the Bioethics Table to continue its engagement in consultations and discussions with various stakeholder groups,” the statement from the ministry reads.

In a news release, the NDP said the document “shows that the crisis in hospitals is out of control” while accusing Premier Doug Ford and his government of trying to keep it out of public view.

“Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret,” the NDP said.

Public health units also reported another 24 deaths of people with the illness, pushing the official toll to 5,433.

Vaccine clinic opens at Metro Toronto Convention Centre

A clinic dedicated to administering COVID-19 vaccines opened in a Toronto convention centre on Monday.

The same day, city officials announced the clinic will have to be paused as of Friday, due to a lack of access to vaccines.

The clinic at the Metro Toronto Convention Centre, which is in the downtown core, aims to vaccinate 250 people per day, but the city noted that is entirely dependent upon vaccine supply.

City officials said the “proof-of-concept” clinic will help Ontario’s Ministry of Health test and adjust the setup of immunization clinics in non-hospital settings.

The clinic at the Metro Toronto Convention Centre, which is in the downtown core, aims to vaccinate 250 people per day, but the city noted that it will have to pause the clinic on Friday due to a lack of vaccines. (Evan Mitsui/CBC)

The Ministry of Health said this morning that another 9,691 doses of COVID-19 vaccines were administered in Ontario yesterday. A total of 209,788 shots of vaccine have been given out so far, while 21,752 people have received both doses and are considered fully immunized to the illness.

Pfizer-BioNTech, which manufactures one of the two Health Canada-approved vaccines, announced last week that it’s temporarily delaying international shipments of the shots while it upgrades production facilities in Europe.

Ontario wants everyone vaccinated by early August, general says

The Ontario government has said that will affect the province’s vaccine distribution plan, and some people will see their booster shots delayed by several weeks.

Officials in Hamilton, meanwhile, said the province has directed it to temporarily cease administering the first dose of both the Pfizer-BioNTech and Moderna vaccines to everyone except residents, staff and essential caregivers at long-term care homes and retirement facilities.

A spokeswoman for Health Minister Christine Elliott did not say how many regions of the province had received that directive.

With files from Lucas Powers, Adam Carter and The Canadian Press

TVO Online January 15, 2021

Originally posted at https://www.tvo.org/article/what-happens-to-disabled-ontarians-if-we-run-out-of-icu-beds

What happens to disabled Ontarians if we run out of ICU beds?

The government has not publicly shared a triage protocol — but what we know about its thinking has experts and advocates worried that Ontarians with disabilities will be denied care

By Sarah Trick – Published on Jan 15, 2021

medical workers gather around a hospital bed

Health-care workers with a COVID-19 patient in the ICU at Toronto’s Humber River Hospital on December 9, 2020. (Nathan Denette/CP)

OTTAWA — With Ontario’s ICUs closer to being overwhelmed than they’ve ever been and COVID-19 case counts still worrisomely high, one question is becoming ever more urgent: What happens when the province runs out of capacity for critical care?

It is becoming more and more likely that doctors will have to make decisions about who does and does not get critical care in the event of a surge — Anthony Dale, the president of the Ontario Hospital Association, recently told TVO.org that, based on Ontario Health projections, by February 24, “we will absolutely have exceeded our health system’s capability of caring for COVID patients and all the other people needing other forms of life-saving care.”

But there are serious concerns with both the content and the transparency of Ontario’s draft triage protocol, and advocates for people with disabilities say that even with changes incorporated at the behest of the disability community, they are at risk of human-rights violations and being denied care unjustly.

Since the beginning of the COVID-19 pandemic, health-care systems around the world have been concerned about what might happen if the number of patients needing critical care resources, such as ventilators, exceeded the capacity of those resources. In some jurisdictions, such as Los Angeles, this has already happened: first responders have been told to reserve oxygen and not to transport patients to the hospital whom they see as having little chance of survival. Making decisions about how to ration care — sometimes referred to as triage — is an option of last resort.

We already experience a form of triage whenever we go to the emergency room. In normal times, you’ll see a doctor sooner for chest pain than you would for a sprained ankle. In a mass-casualty event, such as a natural disaster, where there are limited resources in the field, triage is a way to make sure those resources get used effectively. The people most in need get them first.

A pandemic is similar to a mass-casualty event in that there are many people who need treatment and limited treatment resources. But triage in this context, where there are limits on equipment and available staff, involves excluding people from care. “You can buy ventilators,” James Downar, critical-care physician at the Ottawa Hospital and a member of the province’s bioethics table, told The Agenda this week. “You can buy beds, and you can find space in a hospital. It’s a lot harder to get trained and expert staff to manage critically ill patients in a short period of time, and I think that’s more than likely going to be the limitation we hit.”

The bioethics table completed a draft version of a triage protocol in March. Although the first version of it was never made public or formally adopted, it was circulated to hospitals and community organizations for their feedback. Immediately, advocates began to sound the alarm, due to clauses in the protocol they saw as discriminatory toward people with disabilities.

One of those advocates was Brian Dunne, executive director at Participation House Support Services in London, whose clients he describes as “the people that long-term care won’t take.” The clients living there are often medically fragile, and many use ventilators in their daily lives already. Under the original triage protocol, Dunne says, his clients would have been “triaged to palliative care” despite the fact that their disabilities are stable and they live in the community.

In order to treat its patients, PHSS set up a hospital space right in the building, where it can provide everything a hospital would, short of actual critical care, Dunne says, adding that the space is also used as the facility’s isolation ward for COVID-19 patients, which helps with infection control. “We would do everything we can to save them,” he says. While he notes that he has not been told his patients can’t come to the hospital, he says there’s generally a reluctance to treat them and an understanding that the hospital is a last resort: “There’s kind of a general rule: do not send people here unless they absolutely need to go.”

Dunne isn’t the only one concerned. David Lepofsky, chair of the AODA Alliance, a disability consumer advocacy group, says that the first version of the protocol is grounded in a discriminatory approach to people with disabilities. “The fact that experts that the government hand-picked in medicine and bioethics could write a protocol ridden with disability discrimination and bias is horribly disturbing,” he says. The draft relies on a tool called the Clinical Frailty Scale, which assesses whether a patient can perform certain activities of daily living, such as getting dressed, going to the bathroom, and managing finances. Higher scores indicate greater frailty.

Because people with disabilities often have difficulty performing these tasks without assistance, he says, the use of this scale can result in discrimination against them or in a presumption of frailty — when, in fact, the patient is stable. The CFS has not been validated as a triaging tool for younger people, and its was originally used to figure out which kinds of care should be provided to frail elderly patients, not which kinds of care they should be excluded from.

A statement from ARCH Disability Law Centre, an organization that provides legal assistance to people with disabilities, said that this constitutes discrimination against disabled people because it means that a disabled person will always be at a relative disadvantage to those without disabilities.

“In effect, the Triage Protocol adopts the absence of a pre-existing disability as a qualification for prioritization in accessing critical care,” the briefing note reads. “The way in which the Triage Protocol currently operates, a person with a disability is much less likely, if ever, to be prioritized above a person without a disability. This concern is further exacerbated by the fact that a broad categorization of disabilities — progressive disabilities — is a criteria upon which a patient will be denied access to critical care.” (ARCH did not respond to interview requests from TVO.org.)

The Bioethics Table did respond to feedback about this issue — Lepofsky describes it as having been “very responsive.” In later versions of the draft protocol, the most recent of which was completed in December, the application of the CFS is more limited. Downar told The Agenda that it should be applied only to “frail patients” but did not provide additional explanation. The new version of the protocol, he said, triages based on expected survival time. Although this is an improvement in the eyes of disability advocates — since progressive disabilities, such as Alzheimer’s disease, muscular dystrophy, or Parkinson’s disease, are not singled out — Lepofsky noted on The Agenda that there is a lot of room for interpretation when it comes to expected survival time.

Perhaps more concerning is the fact that the government has not made the triage protocol public, advocates say. The latest version of the protocol does incorporate feedback from advocates, but, contrary to the table’s recommendations, it has not been widely distributed. (As with many COVID-19 policies, it’s the provincial government that decides whether it will be adopted — the bioethics table does not have final say.) But Lepofsky says that the very fact that the first draft protocol circulated for so long could lead to medical professionals inadvertently applying old, discriminatory rules, possibly without even realizing: “You can’t hit the clear button on their brains.”

When the protocol was being revised, a spokesperson for the Ministry of Health told TVO.org via email that “the Ministry of Health has asked the Bioethics Table to ensure that concerns and perspectives of those representing Indigenous people, black and racialized communities, persons with disabilities, and others who may be disproportionately affected by critical care triage due to systemic discrimination, are meaningfully considered and reflected in a revised protocol.” (TVO.org has asked for an updated comment but did not hear back by publication time.)

In a series of letters written during the fall of 2020, Ena Chadha, the chair of the Ontario Human Rights Commission, called on the government to release the protocol not only to stakeholders but also to the wider public. The government, she wrote, should “ensure that human rights is the primary guiding principle” of any protocol and that any protocol should ensure that there is a legislative basis for whatever decisions are being made and have built-in accountability measures.

Chadha says that she recognizes that any protocol will necessarily result in decisions that exclude some people from treatment. “I don’t know if we can create a protocol that completely eliminates all differential treatment, but what we could do is develop one that has differential treatment that doesn’t discriminate, so it isn’t based on stereotypes about people with disabilities and the quality of their lives,” she says. “The discrimination comes in when you’re relying on biases that just assume someone with a disability will not have a good quality of life.”

Lepofsky says that is a major concern for those in the disability community, because of the stigma they already face: “If a patient is nearing the end of their life, imagine the family being told, ‘Well, what’s their quality of life?’” Studies have shown that disabled people tend to rate their own quality of life higher than medical professionals do.

Lepofsky says he doesn’t blame doctors for the situation. “I’m totally sympathetic with them — they go into medicine to save lives, not to decide ‘you should not live.’”

According to the CBC, hospitals in Ontario began sending out memos Wednesday about training critical-care physicians on triage. As of Friday morning, the protocol had not yet been officially released to the general public.

Time is of the essence, Lepofsky says: “If you want to train [health-care staff], you need to train them now. In the States, they’re already doing some rationing. It’s not a hypothetical.”

 Ontario New Democratic Party January 18, 2021 Media Statement

PRESS RELEASE

January 18, 2021

Ford’s secret triage protocols troubling: NDP

HAMILTON AND OTTAWA — As hospitals continue to fill beyond capacity, the Ford government has issued a triage protocol to decide who will get life saving ventilator support, and who will not. NDP Leader Andrea Horwath said the protocol shows that the crisis in hospitals is out of control, and that Ford’s attempt to keep it secret is wrong.

“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,” said Horwath. “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 protocol, obtained by the NDP, is dated Jan. 13. It was wrong to keep it under wraps, said Horwath. Had physicians not reached out to the Official Opposition and others, the directive that was written in secret, without consultation, would remain a secret.

Joel Harden, NDP critic for Seniors as well as Accessibility and Persons with Disabilities, said he agrees with the Accessibility for Ontarians with Disabilities Act Alliance (AODA), which has also read the protocols, and is raising concerns that some people, including those living with disabilities, could be denied care.

“This shows that Ford knows how dire the situation is. And it leaves us all to ask why time and again, he keeps choosing half-measures,” said Harden. “There are people now forced to live in fear, believing that they may not get the care they deserve if they end up in the ICU.

We Publicly Post New Secret Ford Government Directions to Ontario Hospitals on How to Decide Who Lives and Who Dies if Life-Saving Critical Care Must Soon Be Triaged – Serious Human Rights Dangers for Ontarians with Disabilities

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

We Publicly Post New Secret Ford Government Directions to Ontario Hospitals on How to Decide Who Lives and Who Dies if Life-Saving Critical Care Must Soon Be Triaged – Serious Human Rights Dangers for Ontarians with Disabilities

January 18, 2021 Toronto: The AODA Alliance has acquired, and here makes public,  a copy of what appears to be the Ford Government’s secret new January 13, 2021 triage protocol – which directs Ontario hospitals who is to be refused life-saving critical medical care they need, if hospitals must ration or triage critical care. The AODA Alliance today sent Ontario Health Minister Christine Elliott a detailed letter, set out below, asking if the Government disputes that this is the new triage protocol, and spelling out dire concerns with it from the perspective of patients with disabilities.

“People with disabilities have been disproportionately exposed to the risk of getting COVID-19, and of suffering its most serious impacts,” said David Lepofsky, Chair of the non-partisan AODA Alliance, which campaigns for accessibility for 2.6 million Ontarians with disabilities. “Compounding this cruel reality, this secret document shows that some patients with disabilities now risk being de-prioritized in access to life-saving critical care that they will disproportionately need if Ontario hospitals, now near the breaking point, cannot provide life-saving critical medical care to all patients needing it.”

Concerns identified include these: the Government cannot direct which patients live or die by simply sending such a memo to hospitals. Any triage protocol must be mandated by valid legislation.

This January 13, 2021 Triage Protocol wrongly directs triage doctors in some situations to use the disability-discriminatory Clinical Frailty Scale (CFS). Also, the protocol’s setting a patient’s 12-month likely survival as the triage criterion further risks disability discrimination. Under the protocol, each triage doctor can end up being a law unto themselves. The protocol’s references to respecting human rights do not eliminate serious concerns about its authorizing disability discrimination.

The January 13, 2021 triage protocol does not provide patients whose life is at stake with basic due process and procedural fairness. It is also unclear on whether it is ever directing doctors to withdraw ongoing critical care from a patient already receiving it to make room for another patient – a terrifying prospect.

“The Ford Government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor,” said Lepofsky. “The Ford Government must now rescind and fix this discriminatory new triage protocol, and directly consult the public on this issue. It also needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged.”

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For more background on this issue, check out:

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

January 18, 2021 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

January 18, 2021

To: The Hon. Christine Elliott, Minister of Health

Via email: Christine.elliott@ontario.ca

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

We urgently ask you to act now. Please prevent the serious and imminent risk that under your Government’s written directions, Ontarians with disabilities risk being subjected to disability discrimination when they seek access to life-saving critical medical care during the COVID pandemic, if hospitals must ration or triage critical care. The time when triage may have to take place is getting close, according to Dr. James Downar, a member of the Government’s external advisory Bioethics Table (speaking on The Agenda with Steve Paikin on January 13, 2021).

We attach a deeply troubling document we have received, dated January 13, 2021, entitled “Adult Critical Care Clinical Emergency Standard of Care for Major Surge”. In this letter we call it the “Government’s January 13, 2021 Triage Protocol”. It appears to be your Government’s most recent directions to Ontario hospitals on how to decide which patients, needing life-saving critical care, should be refused that care, if triage or rationing becomes necessary.

We understand that it was sent to Ontario hospitals on or about January 13, 2021. Your Government did not make it public then or after, nor did it acknowledge publicly that such a document was finalized or sent to hospitals. We only found out about it when a copy of it reached us. We are making it public, with this letter. Does the Government dispute that this is the document which was sent to Ontario hospitals on or about January 13, 2021, or any time this month, by or on behalf of the Ontario Government, Ontario Health, the Ontario Critical Care Command Centre, or any other such emanation connected to the Ontario Government?

Please immediately intervene to address the critical care triage issues we identify in this letter, and to keep your Government’s unkept commitments that during this pandemic, your Government will protect the most vulnerable, and be open and transparent in doing so. Right now, on this issue, your Government is being persistently secretive and is leaving the most vulnerable exposed as the most at risk of being denied life-saving critical care.

We have not had sufficient time to study in detail the January 13, 2021 triage protocol. However, given the subject’s urgency, we alert you to very serious concerns that we have already identified. In summary, we are deeply concerned that the Ontario Government’s approach to the impending possibility that life-saving critical medical care may soon have to be rationed or triaged, and that some patients will die as a result, is severely flawed. It risks unjustified discrimination based on disability. It risks victimizing people with disabilities who already bear COVID-19’s worst hardships. It is not shown to be authorized by law. It does not provide fair due process to patients whose lives are at risk. It is the result of your Government dealing with this issue in secret, talking mainly or exclusively to doctors and bioethicists who have not shown themselves to have an appropriate understanding of the legal rights of people with disabilities.

We summarize our key points as follows:

  1. The Government cannot direct which patients live or die by simply sending a memo to hospitals.
  1. The new January 13, 2021 Triage Protocol wrongly directs triage doctors to use the disability-discriminatory Clinical Frailty Scale (CFS).
  1. Setting a patient’s 12 month likely survival as the triage criterion further risks disability discrimination.
  1. References to respecting human rights in the January 13, 2021 triage protocol do not eliminate our documented serious concerns about its authorizing disability discrimination.
  1. The January 13, 2021 triage protocol does not provide patients whose life is at stake with basic due process and procedural fairness.
  1. The January 13, 2021 triage protocol is unclear on whether it is ever directing doctors to withdraw ongoing critical care from a patient already receiving it to make room for another patient.
  1. The Ontario Government needs to announce and implement a clear and effective strategy to prevent the need for life-saving critical care services to ever have to be rationed or triaged.
  1. The Ford Government’s handling of the critical care triage issue from the start has been plagued with harmful secrecy, evasiveness and a lack of candor.
  1. The Government must now rescind and fix the January 13, 2021 triage protocol, and directly consult the public on this issue.

1. The Government Cannot Direct Which Patients Live or Die by Simply Sending a Memo to Hospitals

It is not clear that your Government has authority to make such life and death decisions in secret, by a memo to hospitals. This concern has been reinforced by the Ontario Human Rights Commission, and at least to some extent, by the Government’s own external advisory Bioethics Table.

The rule of law unremittingly applies to the Ontario Government without exception, even during a pandemic. The Government cannot issue directions on which patients, needing life-saving critical care, are to be refused that care during rationing or triage, simply by sending a memo to hospitals, much less a secret memo written by unnamed people. There must be a proper legislative basis for any such direction. That legislation must comply with the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, and the Criminal Code of Canada.

Any scholarly debate over what standard or rules should apply for conducting critical care triage is completely beside the point, if the triage directions are not legally authorized and mandated. Minister, what valid legislation gives the Government or its “Critical Care COVID-19 Command Centre” the authority to give such life and death directions, or to decide when they are to go into operation? The January 13, 2021 triage protocol simply says it was approved by the Ontario Critical Care COVID Command Centre.

Amplifying this concern, the January 13, 2021 triage protocol does not include the paramount requirement that any refusal of life-saving critical care to a patient needing it must be lawful. Where it lists principles to govern triage, the document makes some references to legal considerations, but fails to recognize legality as paramount.

2. New January 13, 2021 Triage Protocol Wrongly Directs Use of the Disability-Discriminatory Clinical Frailty Scale CFS

We strongly object to the January 13, 2021 triage protocol because it uses, as part of critical care triage, the “Clinical Frailty Scale” (CFS). When used in such triage, the CFS demonstrably directs disability-based discrimination against some patients with disabilities.

We, the ARCH Disability Law Centre and others thoroughly warned The Government and its external advisory Bioethics Table of this months ago. The Ontario Human Rights Commission has also objected to the CFS being used in the triage protocol. Yet this discrimination has not been eliminated from the January 13, 2021 triage protocol. As explained further below, the January 31, 2021 protocol’s various references to human rights do not counteract this impermissible discrimination.

In this letter, we address disability discrimination. Serious concerns about racial, Indigenous and other illegal discrimination have also been raised with the Government. That must also be effectively addressed. Moreover, where a patient has a disability and is also the member of another Human Rights Code-protected vulnerable minority, there is an increased risk of compounding impermissible discrimination.

People with disabilities have been disproportionately exposed to the risk of getting COVID-19 and suffering its most serious impacts. Disproportionately, those dying from COVID-19 in Ontario are people with disabilities. For example, those dying in our long term care homes are people with disabilities. Compounding this cruel reality, several reasons show that people with disabilities now risk being de-prioritized in access to life-saving critical care that they will disproportionately need if Ontario hospitals, now near the breaking point, cannot provide life-saving critical medical care to all patients needing it.

First, buried in the January 13, 2021 triage protocol amidst a blizzard of technical medical jargon is a mandate for doctors to use the “Clinical Frailty Scale” (CFS) as part of triage assessments of at least some patients who need critical care. The AODA Alliance and the ARCH Disability Law Centre demonstrated last summer to the external advisory Bioethics Table that the CFS is riddled with incurable disability discrimination. See e.g.:

  1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table;
  2. The captioned video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage; and
  3. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.

The January 13, 2021 triage protocol permits two different ways to use the CFS, and includes a simplified tool for using it. The appendix to that protocol document entitled “Clinical Assessment Tools for Short Term Mortality Risk Assessment for Critical Illness” repeatedly authorizes a triage doctor to use the CFS, and also more generally states:

“Use Clinical Frailty Score as part of a holistic assessment for people aged 65 and over, without stable long-term disabilities (e.g. cerebral palsy), learning disabilities or autism. For any patient aged under 65, or a patient of any age with stable long-term disabilities (e.g. cerebral palsy), learning disabilities or autism, do not use the CFS as the degree of disability may not reflect STMR. Consider comorbidities and underlying health conditions in assessing their STMR.”

Under the CFS as mandated here, in the case of a critical care patient with a progressive disease but who has more than six months to live, their likely mortality would be assessed in part by the number of activities of daily living that they can perform without assistance, having regard to each of these specific activities: dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The CFS is a clear illustration on its face of direct disability discrimination. As such, there is no need to resort to the additional fact that it also has clear discriminatory disproportionate impact on patients with disabilities.

It is a core feature of the CFS that it calls for an assessment of a patient’s ability to undertake certain activities of daily living independently or without assistance. Yet at the core of equality and human rights protections for people with disabilities is their right to disability accommodations where needed, and their right to have their abilities assessed with needed disability accommodations, not with their needed disability accommodations wrenched from them. The CFS thereby embodies a deeply entrenched, blistering violation of human rights on that basis alone.

For the triage protocol to invite doctors or other health care professionals to assess the abilities of a patient with disabilities to undertake certain activities of daily living independently or without assistance is to reinforce and build upon deeply injurious stereotypes about people with disabilities. To do so in a protocol that invokes bioethical commitments to “fairness” is especially indefensible.

It would be wrong to assess a doctor’s ability to practice medicine by first requiring them not to wear their eyeglasses. In a decision over life or death, it is all the more wrong to take that erroneous kind of approach to assessing a patient’s ability to undertake the CFS-listed activities of daily living without considering their needed disability accommodations.

Second, such an assessment by doctors or other health professionals of people with disabilities risks triggering a covert assessment of the social worth or “quality of life” of patients with disabilities. That deliberative process must be strictly and proactively prevented, and not directly or indirectly tolerated or encouraged. This serious problem is not eliminated by a reference elsewhere in the January 13, 2021 triage protocol about not evaluating a patient’s quality of life.

Third, Dr. James Downar, a prominent member of the advisory Bioethics Table, acknowledged during our virtual meetings last summer with that Table that there is subjectivity in a doctor’s application of the CFS to a particular patient. From this we are concerned that two different doctors could well score the same patient differently. In other words, each doctor can become a law unto themselves.

I pointed that subjectivity out to Dr. Downar on the January 13, 2021 panel on The Agenda with Steve Paikin in which we both took part. Dr. Downar did not deny having said that.

Making this an even greater concern, the fact that a person has an MD does not mean they have expertise in assessing a patient’s ability to undertake activities of daily living. During our meetings last summer with the Bioethics Table, we were told that most physicians are not trained in medical school on how to use the CFS. Some geriatricians have training or experience in its use. In contrast, we noted for the Bioethics Table that the health care professionals whose expertise more specifically focuses on a patient’s ability to undertake activities of daily living (a central part of the CFS) are occupational therapists, not physicians.

Fourth, further increasing its arbitrariness and unfairness, the CFS’s core focus on a patient’s ability to perform certain activities of daily living can bias against patients based on their socio-economic status, or the timing of when they acquired their disability. Poor people with disabilities can have less access to rehabilitation training and supports compared to the more affluent. Someone who acquired their disability long ago may have had much more opportunities to learn to perform such activities of daily living, as compared to those who just got their disability more recently. When reviewing the CFS with some members of the Bioethics Table last summer, it was not disputed that the CFS measures can have such adverse affects depending on a patient’s socio-economic status or when they acquired a disability.

Fifth, it does not reduce these concerns that the protocol directs a triage doctor to use a patient’s CFS score as but one factor in a holistic triage assessment of the patient. This is because:

  1. To the extent that a triage doctor uses the CFS at all for triage, it has all the serious problems that we and other disability advocates have repeatedly identified.
  1. Under this new triage protocol, each triage doctor is given a sweeping discretion to weigh a patient’s CFS score as a factor in their triage decision. There is no assured consistency in how much weight each triage doctor gives that CFS score. Some will give it a lot of weight. Others could give it much less weight. Here again, each doctor will be a law unto themselves. The weight they decide to give the CFS score could well be a decisive factor on whether the patient is allowed to live or left to die.
  1. For a triage doctor to be given a discretion to decide how much weight to give a patient’s CFS score in making a triage decision is in effect to give that doctor or team a carte blanche to apply whatever triage criteria they wish. After using whatever triage criteria they wish, they could thereafter assign to the patient’s CFS score that amount of weight that will support the outcome that the triage doctor otherwise preferred. Once again, each doctor becomes a law unto themselves.
  1. This opens the door to covert or even unconscious disability discriminatory or stereotype-based decisions. It also opens the door to a triage doctor in effect making their decisions on the patient’s perceived quality of life or social utility.

Even the Bioethics Table has in substance conceded that limits are needed to the CFS’s use. The Government’s earlier March 28, 2020 triage protocol (rescinded on October 29, 2020) directed the CFS’s use for patients over age 18. The Bioethics Table subsequently recommended it not be used for those under 65, and recognized some limitations to it. The Bioethics Table in its September 11 Report in Appendix C stated the following:

“However, the Bioethics Table learned through its consultation with disability rights experts that the use of CFS in the context of critical care triage raises significant concerns that persons with disabilities, many of whom may need assistance with activities of daily living, would score higher on the CFS than an able-bodied person and that this could lead to the over-triaging of persons with disabilities.”

The CFS was not created as or designed to be used as a triage tool. Limiting it to patients over 65 does not eliminate any of the foregoing concerns for those patients to whom it would be applied.

3. Setting a Patient’s 12 Month Likely Survival as the Triage Criterion Further Risks Disability Discrimination

The January 13, 2021 triage protocol sets as the triage criterion a patient’s likelihood of surviving for at least 12 months. Like the Ontario Human Rights Commission, we object to this 12 month measure. We urge that it be substantially shortened.

It appears undisputed that doctors are not able to objectively predict if a patient, needing critical care, is likely to live for more than 12 months. No objective tool exists for measuring this. The January 13, 2021 triage protocol, by offering a blizzard of medical jargon, may give the impression that this is all objective medical science. However, such an impression would be false.

The 12 month horizon would give doctors far too much latitude for subjective or unscientific assessments. This is yet another way in which triage doctors would become a law unto themselves.

Exacerbating this, last summer, during the Bioethics Table’s virtual meetings in which we took part, I asked Dr James Downar (head of a hospital palliative care service) about how doctors evaluate a patient’s 3 month likely mortality to qualify for admission to palliative care. He candidly said “We lie.” For our part, we are concerned that if doctors lie for a 3 month mortality assessment, there is at least a risk that some doctors will do the same for a 12 month mortality assessment. Once more, doctors would each become a law unto themselves.

We do not understand Dr. Downar as saying that doctors lie maliciously or selfishly, in that context. We understood him to mean that they do so to help a patient get into palliative care.

Dr. Downar has taken strong exception to my making this point. An example of this was at the end of the January 13, 2021 panel on The Agenda with Steve Paikin. He argued that there is a difference between doctors doing so to get a patient into palliative care (i.e. to get them needed medical services). However, it is pivotal that Dr. Downar did not deny saying what he did regarding doctors’ conduct. Moreover, to us, the cause for concern arising from his statement to us last summer is clear and present, despite Dr. Downar’s argument to diminish it.

Beyond the foregoing, there is a practical risk that this triage protocol will not govern actual triage decisions, regardless of its contents. In a specific hospital, in the midst of a pandemic surge, there is a real risk that a triage doctor, called upon to make a critical care triage decision, will look at the four patients who need critical care and the two available critical care beds, and will size them up based on the doctor’s own personal views of who is the most “deserving”. Here again, the risk of stereotypes and of assessing perceived quality of life or social utility of each of the patients is palpable. The CFS’s focus on a patient’s ability to undertake certain activities of daily living independently or without assistance risks triggering such stereotype-based thinking.

This is made more evident since, during the December 17, 2020 roundtable on this issue held by the external Bioethics Table and the Ontario Human Rights Commission, Dr. Andrew Baker, a member of the Government’s Critical Care Command Table, made it clear that in his view, the way to address triage now would be life years saved. That would fly in the face of the bioethics Table’s September 11, 2020 report, the Government’s January 13, 2021 direction to hospitals, and the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms. He thereby further illustrated the risk of a doctor becoming a law unto themselves.

4. References to Respecting Human Rights in the January 13, 2021 triage protocol Do Not Eliminate Serious Concerns about Its Authorizing Disability Discrimination

Despite its several references to human rights, the January 13, 2021 triage protocol takes a fundamentally wrong approach to the Ontario Human Rights Code. That law cannot be overridden by a Government memo, a hospital administrator or a front-line doctor. It is a quasi-constitutional law. It can only be overridden, if at all, where another valid piece of legislation includes an override provision. Yet contradicting this, the January 13, 2021 triage protocol erroneously directs hospitals and doctors in effect that there may be some room to act contrary to the Ontario Human Rights Code during the pandemic. It states:

“This standard of care is intended to align with the Ontario Human Rights Code (Appendix A) to the extent permitted in the context of a major surge.”

Making this worse, the protocol then purports to explain what the Ontario Human Rights Code requires. It does so in a dangerously incomplete way, from the prospective of patients with disabilities. It does not explain that no assessment tool can be used which, though neutral among patients, and medically-sincere in its application, has a disproportionate discriminatory impact on people with disabilities, unless a compelling defence can be made out that accords with human rights standards. As explained earlier in this letter, the Clinical Frailty Scale which the document later explicitly permits is just such a disability discriminatory tool. Any such requirement can only be used if the organization using it can show that it is impossible to accommodate people with disabilities in relation to the service in question without undue hardship. The burden of proof to justify it is on those using the discriminatory tool, not on the patient with a disability who would be its victim.

5. The January 13, 2021 Triage Protocol Does Not Provide Patients Whose Life is at Stake with Basic Due Process and Procedural Fairness

The January 13, 2021 triage protocol says that fairness and fair procedures are valued principles that are to apply. Yet it does not provide due process to a patient whose life is in jeopardy due to possible critical care triage. This flies in the face of the Canadian Charter of Rights and Freedoms, our submissions to the Bioethics Table last summer, and the Bioethics Table’s September 11, 2020 report to the Government.

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

For example, under this protocol, a doctor, who has never before hospital admission met the patient, may use the disability-discriminatory Clinical Frailty Scale to help rate the patient’s likely 12 month mortality, in part by assessing if the patient can without assistance undertake 11 activities of daily living, such as getting out of bed, dressing, eating or doing their finances. Due process entitles the patient to have fair notice and a chance to be heard by the persons making a life-or-death decision about their access to life-saving critical care (e.g. by showing why they can do those activities).

As well, there is no right of appeal. The Bioethics Table recommended an internal appeal within the health care system. We support that but have urged that there also needs to be an external swift appeal to a court or tribunal, given that lives are at stake. From what we have received, it appears that the Government may have included an internal appeal within the health care system in its secret November 13, 2020 draft protocol (never made public or shared with us). It also appears that the January 13, 2021 triage protocol has eliminated even that partial element of due process for patients. No explanation for this has been given.

6. The January 13, 2021 Triage Protocol is Unclear on Whether it is Ever Directing Doctors to Withdraw Ongoing Critical Care from a Patient Already Receiving it to Make Room for Another Patient

The January 13, 2021 triage protocol is unclear at points on whether it only gives directions on refusing to admit a new patient to critical care who needs it, or whether it could also include evicting an existing patient, already receiving critical care, from a hospital’s critical care service. Some points in the protocol make it sound like it only speaks to restrictions on which new patients can get into a critical care ward. Other parts could leave open the possibility of evicting an existing critical care patient from continuing to receive their critical care, without their consent, even though they still need critical care.

For a hospital or doctor to evict a critical care patient over their objection from receiving further critical care they need, risks extremely serious issues, including those that must be considered under the Criminal Code. I raised this once again during the January 13, 2021 panel on The Agenda with Steve Paikin. Here again, we do not see how this can take place, much less how a Government memo has legal authority to permit this. The protocol’s lack of clarity on this point is deeply troubling.

7. The Ontario Government Needs to Announce and Implement a Clear and Effective Strategy to Prevent the Need for Life-Saving Critical Care Services to Ever Have to Be Rationed or Triaged

There would be no need for rationing or triage of critical medical care if the Government had implemented an effective plan to ensure that Ontario had enough critical care beds, equipment and doctors to accommodate the COVID-19 surge. The Government knew last February, 11 months ago, that it needed to be ready. It cannot now excuse its failure to be ready on some unexpected surprise.

On the Agenda with Steve Paikin’s January 13, 2021 panel, Dr. James Downar stated that the risk is not a shortage of hospital space or equipment. There is a risk of a shortage of doctors to deliver critical care. Of course, the Government could not have trained a whole new class of doctors in the past eleven months. However, the Government could have implemented a strategy to train doctors to be redeployed to meet this surge need, who are practicing in related areas, to the extent possible. That would seem preferable to turning away patients altogether from needed life-saving critical care, due to staffing shortages. Because the Health Ministry has refused to talk to us about this entire issue, we have had no chance to discuss this.

Just two months ago, despite warnings from professionals about the anticipated winter COVID-19 surge, the Government was in public denial of the situation’s severity. On November 5, 2020, answering an opposition question about this triage issue in the Legislature’s Question Period, Robin Martin MPP, your Parliamentary Assistant denied the likelihood that a triage protocol would have to be invoked. She said:

“We don’t anticipate getting anywhere near having to use such a protocol…”

Making this worse, we do not know what the Government has done to ensure that there is a swift, efficient, centralized system in place to transport critical care patients from overloaded regions to those not yet overloaded. The January 13, 2021 triage protocol ambiguously states:

“In the context of a major surge, it is expected that hospitals and regions will collaborate to coordinate the allocation of critical care resources to save the most lives possible, and cooperate with provincial directions provided by the Ontario Critical Care COVID Command Centre.”

For this to operate effectively, it should be centrally planned and operated on a province-wide basis, administered and monitored, with public accountability. It cannot simply be an “expectation” or hope that hospitals will do this in the midst of a pandemic crisis, each being left to re-invent the wheel.

8. The Ford Government’s Handling of the Critical Care Issue from the Start Has Been Plagued with Harmful Secrecy, Evasiveness and a Lack of Candor

We respectfully take exception to how your Government has dealt with this issue over the past eleven months. As a troubling start, last winter and spring, your Government developed the March 28, 2020 critical care triage protocol in secret. You did not alert the public that you were developing a protocol for this issue. You sought no input from the public including the disability community. It seems you only obtained input from the medical and bioethics community. Yet they have no expertise in the law, the Constitution, human rights or disability rights, as the past months have amply shown.

Once that secret March 28, 2020 triage protocol was leaked, your Government claimed that it was only a draft. Yet it was never marked draft. Your Government has still never made it public.

Last April, that secret March 28, 2020 triage protocol was widely condemned as discriminatory against some patients with disabilities. Yet your Government left it festering in place at Ontario hospitals for six months. Only after the disability community, the Ontario Human Rights Commission and even your own Bioethics Table called for it to be rescinded, did your Government rescind it, though only after weeks of further delay. That too was done in secret on October 29, 2020. We only learned of its cancellation on November 5, 2020 when your Government was pressed on this triage issue by the opposition in Question Period.

For the entire pandemic, you and your Ministry have refused to meet or talk with us about our input and concerns on this triage issue. You have not answered any of the six earlier letters that we sent you since September. For the past eleven months, your Government has been hiding behind its external advisory Bioethics Table, using them in effect as human shields. We know from decades of disability advocacy that on such important issues, it is essential to speak directly to those inside government who are making the decisions.

Too often, we only find out about steps taken on this issue when the opposition ask questions in Question Period in the Legislature, or when a reporter asks a question at the Premier’s news conference, or when documents are leaked. Written questions to the Government from the media too often go unanswered or get evasive answers.

There are still more illustrations of the Government’s secrecy on this issue. The January 13, 2021 triage protocol reveals that on January 12, 2021, the Government-appointed external advisory Bioethics Table revised its September 11, 2021 report to the Government, and issued a new report dated January 12, 2021. That revised report has not been disclosed to us and the public. We ask that you immediately make it public and provide it to us in an accessible format.

The January 13, 2021 triage protocol states that it is “informed by extensive Ontario-based research into public views on pandemic triage and resource allocation”. We have never been shown any such research, nor has it been discussed with us. As far as we can tell, no such information was made public. Most troubling, your Government has held no public discussion or direct Government public consultation on this issue since the pandemic began.

The January 13, 2021 triage protocol was approved by the Ontario Critical Care COVID Command Centre, to which authority is given over part of the triage process. Its mandate and membership should be made public, along with its key decisions. On December 15, 2020, we wrote you to ask for that Centre’s mandate and membership. Here again, you have not answered.

Your Government apparently sent an earlier draft protocol to hospitals on November 13, 2020, not shared with us or the public. We gather from other documents we have received that it did include some kind of patient appeal rights. These evidently have been removed from the January 13, 2021 document which we are addressing in this letter. No explanation has been offered for the removal of any patient right of appeal.

In the past two months, your Government twice made important public statements, when pressed on this issue, which turn out to be inaccurate. On November 5, 2020, the opposition asked the Government about this topic. As quoted in part earlier, your Parliamentary Assistant Robin Martin stated:

“A revised framework may be shared in the future and distributed, should pandemic conditions deteriorate significantly in the province….We don’t anticipate getting anywhere near having to use such a protocol—”

A short eight days later, on November 13, 2020, your Government secretly sent a draft new triage protocol to hospitals – one which the Government has not made public or admitted publicly to having sent. You did not send any such materials to us, though we keep asking for such materials. Ms. Martin’s answer is contradicted by your Government’s action eight days after she spoke.

Similarly, on December 3, 2020, at the Premier’s news conference, you were asked by Global News about this triage issue. You made it sound like your Government is having discussions with the Ontario Human Rights Commission on together writing a new triage protocol. On December 7, 2020, the Chief Commissioner of the Ontario Human Rights Commission wrote you. Her letter in effect makes it clear that there were no such discussions between the Ministry and the Human Rights Commission.

Last Wednesday, January 13, 2021, Dr. James Downar, a member of the Bioethics Table and obviously a key player on this issue, stated during the panel on The Agenda with Steve Paikin that consultations on this issue are ongoing, speaking in the present tense. He strongly opposed suggestions that your Government has not been open and consultative on this issue.

We learned subsequently from the January 13, 2021 triage protocol that the Bioethics Table had secretly delivered a revised report to your Government the day before that panel, January 12, 2021 – one which we had not heard of or seen. We also now know from the January 13, 2021 triage protocol that by then, the Government’s Ontario Critical Care COVID Command Centre in charge of this issue had a week earlier approved a series of specific checklists for critical care triage – including tools we reference above as seriously discriminatory against people with disabilities.

It took three months of pressure to get the Government to release the Bioethics Table’s September 11, 2020 report and recommendations. After the Government’s three months of stalling, we were then given just a few days to take part in a roundtable, with insufficient time to properly review it. Even then, the Government held back from us a key document, sent to hospitals on November 13, 2020, on which we should have been able to comment. Even then, participants from the disability, racialized and Indigenous communities all voiced serious human rights concerns about the Bioethics Table’s September 11, 2020 report. We asked in advance of that roundtable for specific illustrations of how that report’s approach to triage would work in individual cases. None was given, then or afterwards.

The January 13, 2021 triage protocol speaks about the importance of accountability in the triage process. Yet it provides no public accountability. Your Government’s approach to this issue lacks proper public accountability.

We sympathize very much with the plight of front-line medical staff and health workers dealing with the COVID-19 pandemic. We don’t expect that they want the responsibility that the Government is foisting upon them through the January 13, 2021 triage protocol, or that they would want to be party to disability discrimination.

9. The Government Must Now Rescind and Fix the January 13, 2021 triage protocol

We therefore ask you to do the following:

  1. Please immediately advise if your Government disputes the accuracy of the attached as the January 13, 2021 triage protocol that your Government has had sent to Ontario hospitals to deal with critical care triage. Please now make public any and all documents that have been so sent, and the earlier November 13, 2020 draft, as well as the Bioethics Table’s January 12, 2021 report to the Government.
  1. Immediately rescind the January 13, 2021 direction to hospitals.
  1. Immediately make public the names of all those in decision-making or senior advisory roles on this issue within the Government, including within your Ministry and Ontario Health. That includes the membership and mandate of the Ontario Critical Care COVID-19 Command Centre.
  1. Immediately hold urgent public consultations on this issue, before finalizing any policy on it.
  1. Ensure that there is a proper legislative foundation for any policy on this issue. If, as we fear, there is none, then introduce legislation on this, and ensure that the public can present to the Legislature on it. Do not invoke closure to preclude such public input.
  1. Ensure that any policy or law in this area includes:
  1. If a short term mortality criterion is to be used, something far shorter than 12 months.
  1. No use of the Clinical Frailty Scale.
  1. No use of any other assessment tool until and unless it is publicly explained, and shown to be free of unlawful discrimination.
  1. Ensure the provision of proper procedural fairness and due process for patients at risk of critical care triage, including an appeal to court or the Consent and Capacity Board.
  1. Make public the Government’s plan for ensuring that critical care patients can be effectively and quickly transported to other parts of the province if needed, and that doctors can be effectively deployed to preclude the need for any critical care triage.

We remain eager to help. Please answer us. It is a matter of life and death.

Stay safe.

Sincerely,

David Lepofsky CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

cc:

Premier Doug Ford premier@ontario.ca

Helen Angus, Deputy Minister of Health helen.angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility Raymond.cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services todd.smithco@pc.ola.org

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission cco@ohrc.on.ca

Any Time, You Can Watch The Agenda with Steve Paikin’s Panel on Disability Discrimination Risks If Life-Saving Critical Medical Care Must Soon Be Rationed – and – Excellent Canadian Press Article on This 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: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Any Time, You Can Watch The Agenda with Steve Paikin’s Panel on Disability Discrimination Risks If Life-Saving Critical Medical Care Must Soon Be Rationed – and – Excellent Canadian Press Article on This Triage Issue

January 14, 2021

            SUMMARY

1. You Can Watch “The Agenda with Steve Paikin’s January 13, 2021 Panel on Critical Care Triage Issues for Patients with Disabilities Any Time

We continue our unbelievably uphill efforts to get the media to cover the immediate and important issue of the danger that patients with disabilities could be subjected to disability discrimination in access to life-saving critical medical care if overloaded hospitals must ration or “triage” critical medical care. The Ford Government still refuses to answer our letters on this issue.

The one and only televised panel discussion devoted to this issue that included disability and bioethics perspectives took place last night on TVO’s The Agenda with Steve Paikin. You can watch this 30 minute discussion any time by going to this link: https://www.youtube.com/watch?v=qkq1NmaXLwk&feature=youtu.be

The panelists were AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre counsel Mariam Shanouda, Dr. James Downar (a member of the Government-appointed external advisory Bioethics Table and an author of the March 28, 2020 critical care triage protocol with which the disability community had strong objections) and Ontario research chair in bioethics Prof. Udo Schuklenk.

As you watch this panel, please remember that as far as we can tell, there is now no protocol in place in Ontario to direct hospitals what to do if critical care must be rationed or triaged. There is some reference during the panel to a current triage “protocol”. As speakers confirmed elsewhere during the panel, and as is also confirmed elsewhere, the Government has not finalized and issued any critical care triage protocol as of now.

We welcome your feedback on this panel. We will have more to say about it in the future. Write us at aodafeedback@gmail.com

We respectfully take issue with some of Dr. Downar’s and Prof. Schuklenk’s statements. Because of time limitations, there was not enough opportunity for David Lepofsky or Mariam Shanouda to itemize all of these concerns during the interview. We fully understand that there is a limited amount of information that can be conveyed in such a panel.

2. Canadian Press Publishes a Strong Report on the Critical Care Triage Dangers Posed for People with Disabilities

On January 13, 2021, the Canadian Press’s Liam Casey wrote an excellent article on the same critical care triage issue. So far, we have found that article posted on the websites of the Toronto Star and Global News. We have not yet ascertained if any newspapers included it in their hard copy editions, or if any radio or TV news reports included any of it. We set that report out below.

3. What You Can Do

Please spread the word far and wide about the panel on The Agenda with Steve Paikin, and the CP news story. Post these on social media and your website. Email them to others. Recruit a carrier pigeon to get the word out, if you can. Urge as many people as possible to tell the Ford Government that it should immediately consult directly with the public including people with disabilities, and not just hide behind its external advisory Bioethics Table. The Ford Government should also answer our unanswered letters on this issue, sent last fall.

We thank The Agenda with Steve Paikin and its host and staff for including this panel. We applaud the Canadian Press as well. We urge other news and public affairs programs to follow the commendable examples of The Agenda with Steve Paikin and Canadian Press, and give this issue the coverage that it so urgently deserves.

As of now, there have been 714 days, over 23 months, since the Ford Government received the 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 ground-breaking report. This worsens the festering problems facing patients with disabilities during the COVID-19 pandemic, such as those addressed in this new episode of The Agenda with Steve Paikin.

For more background on this issue, check out:

  1. The AODA Alliance’s December 21, 2020 news release on the critical care triage issue.
  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  1. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  1. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  1. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  1. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

January 13, 2021 Toronto Star Online

Originally posted at https://www.thestar.com/news/gta/2021/01/13/medical-staff-need-guidance-on-life-or-death-triage-decision-as-icus-fill-up-experts.html

January 13, 2021 Toronto Star Online

Originally posted at https://www.thestar.com/news/gta/2021/01/13/medical-staff-need-guidance-on-life-or-death-triage-decision-as-icus-fill-up-experts.html

Medical staff need guidance on life-or-death triage decision as ICUs fill up: experts

An ICU health-care worker shown inside a negative pressure room cares for a COVID-19 patient on a ventilator at the Humber River Hospital during the COVID-19

pandemic in Toronto on Wednesday, December 9, 2020. Hospitals and human rights organizations want Ontario to finalize its plan on who, and how, life or

death decisions for patients will be made if and when the day comes where ICU beds will be full.

By Liam Casey The Canadian Press

Wed., Jan. 13, 20213

TORONTO – As intensive care units in Ontario hospitals continue to fill up with COVID-19 patients, the province has yet to finalize a plan on who should get life-saving care when health resources are limited.

The latest COVID-19 projections show the province’s ICUs could reach “gridlock” by mid-to-late February. At that point, health-care workers will have to decide who gets an ICU bed and who doesn’t – a practice known as critical care triage. It’s a heart-wrenching decision doctors in a number of countries with hospitals overwhelmed with COVID-19 patients have had to make.

“It’s really concerning to not know what the plan is and transparency around that would go a long way towards everyone’s ability to prepare and everyone’s mental well-being,” said Dr. Samantha Hill, the president of the Ontario Medical Association, which represents more than 40,000 physicians.

The province has stumbled in its efforts to get the critical care triage ethical framework out to doctors.

Ontario Health sent out a critical care triage protocol on March 28, 2020, but retracted it several months later after an outcry from human rights organizations.

“The first protocol was horrifically discriminatory against patients with disabilities,” said David Lepofsky, the chairman of Accessibility for Ontarians with Disabilities Act Alliance.

One problem with that proposal was the use of a “clinical frailty scale,” or CFS, Lepofsky said. The scale is also part of a proposed framework sent to the government by the Bioethics Table, which advises the province on the health system’s response to COVID-19.

The document – titled “Critical Care Triage during Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario” – lays out how a patient would qualify or be excluded from critical care and was sent to the province in September.

The clinical frailty scale is used as a prognostic tool for progressive illnesses that assesses a patient’s general deterioration over time, the Bioethics Table notes in the document, which was obtained by The Canadian Press.

However, the proposal acknowledges that the CFS “would seem to conflate disability with frailty and hence would contribute to over-triaging of persons with disabilities.”

It further notes that the CFS “illustrates how clinical evidence and experience are not sufficient alone to establish the justifiable use of a clinical tool and calls attention to the embedding of social norms within clinical tools and in their application in practice.”

The Ontario Human Rights Commission has also expressed concern about the recommendation that patients be evaluated for their survival potential over the next 12 months.

Under the Bioethics Table’s proposed protocol, patients would be evaluated and assigned into colour-coded categories based on the predicted percentage of short-term mortality risk over the next year.

There would then be three levels of triage depending on demand and availability of beds. In Level 1 triage, patients who have greater than 20 per cent chance of surviving 12 months should be prioritized. In Level 2, patients with greater than 50 per cent chance of survival in a year should be prioritized and, in Level 3, patients who have a greater than 70 per cent chance of survival should be prioritized.

Ena Chadha, the chief commissioner of the Ontario Human Rights Commission, said the 12-month time period is troubling.

“A doctor can make a decision in the short term: is this person going to survive next week, the next two weeks,” she said.

“But when you start looking at one year…you are going to be infused with discriminatory ideas about the person’s disability and age. Our stakeholders would like to see a much shorter time frame.”

Both Lepofsky and Chadha, along with the Bioethics Table, said there must also be due process — an appeal process — so that life or death decisions aren’t made by one person.

Another major concern for both Lepofsky and Chadha is the province’s lack of transparency on such an important issue.

“This process is very opaque as to who are the decision-makers, what is the process and where are we at right now?” Chadha said.

“This is distressing for our community stakeholders. They are very worried that their dignity and life is at stake and that when it comes to making decisions about a very horrible death, the health-care decision-makers may not understand the value of their life.”

The Ministry of Health said the Bioethics Table will continue to talk to various stakeholders.

“These conversations are ongoing to ensure that the proposed framework reflects the best available evidence and advice,” said spokesman David Jensen, noting that nothing has been approved by the ministry.

Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for a Lively Panel on the Need to Protect Patients with Disabilities from Disability Discrimination if Life-Saving Critical Medical Care Must Be Rationed or Triaged Due to the COVID-19 Pandemic Overloading Hospitals

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for a Lively Panel on the Need to Protect Patients with Disabilities from Disability Discrimination if Life-Saving Critical Medical Care Must Be Rationed or Triaged Due to the COVID-19 Pandemic Overloading Hospitals

January 13, 2021

Watch TVO’s flagship current affairs program “The Agenda with Steve Paikin” tonight at 8 or 11 pm Eastern time for a half-hour panel on what the Ford Government should be doing to ensure that patients with disabilities do not face disability discrimination if life-saving critical medical care must be triaged or rationed. This rationing or triage could be needed soon if the soaring COVID-19 infection rates overload Ontario hospitals.

The four panelists are AODA Alliance Chair David Lepofsky, ARCH Disability Law Centre legal counsel Mariam Shanuda, Dr. James Downar (a member of the Government-appointed external advisory Bioethics Table and an author of the March 28, 2020 critical care triage protocol with which the disability community had strong objections) and Ontario research chair in bioethics Prof. Udo Schuklenk.

This panel will appear on TV. It will also stream tonight at 8 pm on the Twitter feed and Facebook page of The Agenda with Steve Paikin. It will be permanently available on YouTube within a few hours after it airs. We will publicize the Youtube link once we get it.

We once again vigourously applaud The Agenda with Steve Paikin for addressing COVID-19 issues affecting people with disabilities. The Agenda stands in stark and resounding contrast to so many other media outlets that have not covered this life-and-death issue.

Back on April 14, 2020, only one month into the pandemic, The Agenda with Steve Paikin included a panel discussion on how critical care triage should be conducted if COVID-19 overwhelms Ontario hospitals. The three panelists on that program included Dr. Downar, Prof. Schuklenk, and another bioethicist. There was no one speaking from the perspective of the disability community. Those panelists did not themselves voice any disability issues in relation to the entire critical care triage topic. When Steve Paikin raised the fact that concerns had been publicly raised from the disability perspective, Prof. Schuklenk denied that there was a problem of disability discrimination. He had not read the March 28, 2020 critical care triage protocol that the Government had already sent to all Ontario hospitals.

After that program aired, AODA Alliance Chair David Lepofsky wrote The Agenda, urging it to cover the disability perspective on the triage issue as well as other disability issues in the COVID-19 pandemic. To its great credit, The Agenda included AODA Alliance Chair David Lepofsky and Wendy Porch (executive director of the Centre for Independent Living in Toronto CILT) on its May 8, 2020 broadcast. That discussion included the critical care triage issue as well as other disability concerns during the pandemic.

We are delighted that The Agenda is now revisiting the critical care triage issue, given major developments since last spring. To our knowledge, this is the first time that a major media outlet has brought together panelists from the medical, bioethics and disability community perspectives. We need the Ford Government to take part in such discussions, rather than continuing to hide in secret behind its external advisory Bioethics Table that makes no decisions in this area.

Please encourage your friends and family to watch this interview. Promote it on social media like Twitter and Facebook. Urge members of the Ontario Legislature to watch this interview. Call on the media to cover this issue too.

There have been 713 days, over 23 months, since the Ford Government received the 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 ground-breaking report. That makes even worse the serious problems facing patients with disabilities during the COVID-19 pandemic, addressed in this new episode of The Agenda with Steve Paikin.

For more background on this issue, check out:

  1. The AODA Alliance’s December 21, 2020 news release on the critical care triage issue.
  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  1. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  1. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  1. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.

7.The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.

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

Remembering a Major Setback on the Road to Equality for People with Disabilities Forty Years Ago Today – But One that Was Thankfully Reversed a Mere 16 Days Later!

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Remembering a Major Setback on the Road to Equality for People with Disabilities Forty Years Ago Today – But One that Was Thankfully Reversed a Mere 16 Days Later!

January 13, 2021

            SUMMARY

Forty years ago today, people with disabilities in Canada suffered a major defeat in the campaign for full inclusion and full participation in Canadian society. However, it turned out to only be a very temporary defeat, one which only lasted 16 days. Yet forty years ago today, we did not know that this defeat would be so short-lived.

Four decades ago, people with disabilities were waging a battle to get equality rights for people with disabilities entrenched in the new Canadian Charter of Rights and Freedoms that Parliament was then considering for inclusion in Canada’s Constitution. In October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament that would bring Canada’s Constitution home from England, and add a new Charter of Rights to it. The proposed Charter of Rights was to include an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, it would have been impossible for courts to add disability protection to section 15 by judicial interpretation.

Several organizations and individuals came forward in the 1980 fall to call for the Charter of Rights to be amended, before Parliament passed it, to add equality for people with disabilities to section 15. During public hearings in Parliament on Canada’s Constitution in the 1980 fall three disability organizations got the chance to make presentations. You can read their presentations in the December 7, 2020 AODA Alliance Update. Those organizations were the Canadian Association for the Mentally Retarded (later re-named the Canadian Association for Community Living), the Coalition of Provincial Organizations of the Handicapped (COPOH, later renamed the Council of Canadians with Disabilities (CCD)), and the Canadian National Institute for the Blind (CNIB). CNIB’s lead presenter was David Lepofsky, then a law student, and now chair of the AODA Alliance.

Despite those presentations, forty years ago today, the Federal Government announced that it would not add disability equality to the Charter. At the January 12, 1981 meeting of the Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Canada’s Justice Minister, Jean Chretien gave the Government’s reasons for refusing to do so. He was then grilled on this issue at that meeting by an Opposition MP. Below we set out those exchanges, which are amazing to re-read 40 years later.

Justice Minister Chretien, who later went on to be Canada’s Prime Minister, announced at that meeting that under amended wording of section 15 that the Government was proposing, a court could later decide to add equality for people with disabilities to the Charter. However, the Government was not prepared to include wording that ensured that section 15 guaranteed equality to people with disabilities.

This was a huge setback for people with disabilities. However, advocacy from the disability community continued! For example, in the next day’s Globe and Mail newspaper was an article in which David Lepofsky, then speaking for CNIB as a volunteer, showed why Justice Minister Chretien’s refusal to include disability in section 15 was wrong. That article from the January 29, 1981 Globe and Mail is also set out below.

As a result of advocacy efforts from the disability community over the next days, the Federal Government changed its mind. On January 28, 1981, the Joint Committee voted to amend section 15 of the proposed Charter of Rights to include equality without discrimination because of mental or physical disability. The 40 year anniversary of that historic vote is coming up in 16 days.

Our eventual victory in that campaign was the product of efforts by many people. To learn more about this history, which underpins all our disability accessibility advocacy to this day, check out a captioned video of a talk by David Lepofsky, where he recounts the history of the successful campaign in 1980-81 by diverse disability organizations to get the disability amendment added to the Charter of Rights. A captioned video of the December 12, 1980 presentation to the Joint Committee of the Senate and House of Commons by a much younger David Lepofsky, then a law student, on behalf of the CNIB is also available online.

            MORE DETAILS

Hansard of the Parliament of Canada – Joint Committee of the Senate and the House of Commons on the Constitution of Canada

January 12, 1981

Excerpt from the opening remarks by The Honourable Jean Chretien, Minister of Justice and Attorney General of Canada.

(Note: The Minister of Justice gave the Committee a speech in which he listed various changes that the Federal Government was prepared to accept to the proposed Charter of Rights.)

Equality rights:

There has been much discussion of the non-discrimination provisions of the Charter as found in Section 15. I want to deal with this in some detail. First, I want to state that I agree with the proposal made by the Advisory Council on the Status of Women and the National Association of Women and the Law that the section be entitled equality rights so as to stress the positive nature of this important part of the Charter of Rights.

I want to take this opportunity to congratulate all of the witnesses who testified on this section. I want specifically to compliment the Advisory Council on the Status of Women for a particularly fine brief as well as for an impressive presentation before you. The work of the Council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

A provision on “equality rights” must demonstrate that there is a positive principle of equality in the general sense and, in addition, a right to laws which assure equal protection and equal benefits without discrimination. To ensure the foregoing and that equality relates to the substance as well as the administration of the law, I would be prepared to accept an amendment to Section 15(1) so that it would read:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex or age.

I know that many witnesses have recommended either that the grounds for non-discrimination be widened to include handicapped persons or others or that there be no specific enumeration and that more discretion be left in the hands of the courts. The government has studied these representations with great care.

The position of the government is that certain grounds of discrimination have long been recognized as prohibited. Race, national or ethnic origin, colour, religion and sex are all found in the Canadian Bill of Rights and are capable of more ready definition than others.

I want to make clear that the listing of specific grounds where discrimination is most prohibited does not mean that there are not other grounds where discrimination is prohibited. Indeed as society evolves, values change and new grounds of discrimination become apparent. These should be left to be protected by ordinary human rights legislation where they can be defined, the qualifications spelled out and the measures for protective action specified by legislatures.

For example, it was only four years ago that federal human rights legislation specifically provided protection for the handicapped in the area of employment.

Recently the Special Parliamentary Task Force on the Handicapped chaired by David Smith has recommended changes and improvements in the Human Rights Act with respect to the handicapped. The government will be acting on some of the recommendations of the Task Force. The government is also proposing to act on some of the recommendations made by the Canadian Human Rights Commission in this area and will propose amendments to the Human Rights Act.

But if legislatures do not act, there should be room for the courts to move in. Therefore, the amendment which I mentioned does not list certain grounds of discrimination to the exclusion of all others. Rather, it is open-ended and meets the recommendations made by many witnesses before your Committee. Because of the difficulty of identifying legitimate new grounds of discrimination in a rapidly evolving area of the law I prefer to be open-ended rather adding some new categories with the risk of excluding others.

Section 15(2) of the draft Resolution permits affirmative action programs to improve the conditions of disadvantaged persons or groups. I am proposing an amendment to read:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

This section permits programs designed to achieve equality which might otherwise be precluded by the rules against discrimination in subsection 15(1).

The amendment will not preclude other programs to assist the disadvantaged—be it on grounds such as handicap, marital status or other bases of discrimination identified by the courts. It is simply an assurance that an affirmative action program based on a recognized ground of non-discrimination will not be struck down only because it authorizes reverse discrimination for the purpose of achieving equality.

Note: Later in this Committee meeting was this exchange from an opposition NDP member and the Minister of Justice:

Mr. Nystrom: I would like to refer now to a couple of things in the Charter of Rights itself.

You have said on page 7, for example, of your comments to the Committee tonight, and I quote:

The work of the Council

and this is of course the Advisory Council on the Status of Women,

The work of the council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

The government has been, as you say, greatly influenced by the groups that have appeared and you have moved some considerable distance in terms of women’s rights, and I think the suggested amendment is very interesting, one we will take a very serious look at. You have moved some distance in some other areas.

We have also had handicapped groups before the Committee and you said that the groups that have appeared have greatly influenced the government, and I would like to ask you why you do not include in the Charter of Rights any reference to the handicapped, to the physically disabled, to the mentally disabled in our country.

We have had some groups before us who came and made some pretty good arguments, and you said you have been greatly influenced. I would like to know where the influence is.

Mr. Chretien: The position is that the list enumerated there is not exclusive and any other rights on discrimination the court could intervene.

The problem is we say that these rights have to mature in the Canadian society. For example, we will still have a Human Rights Commission and we will still pass legislation on different groups to make sure that their rights are protected, but they have to mature and this list that I have enumerated, excluding the others, we have opened up that clause so that other types of discrimination can be taken care of by the courts, if Parliament and legislative assemblies do not intervene.

But to start to enumerate more in that category where their rights are starting to be protected by legislation and so on, and if there is discrimination against handicapped and so on, we say that the court can intervene even if we do not want to enumerate them at this time because many of those rights are difficult to define. It is in the process of maturing, that is why it is not there.

But before, the clause was limiting the element of discrimination. Now it is not limiting them; other types of discrimination can be covered by the courts too.

Mr. Nystrom: I remind you, Mr. Minister, that this year is the International Year of the Handicapped, the year 1981, or the International Year of the Disabled, rather, and I would like to know more of what you mean by rights have to mature. Why are the handicapped singled out? Why are the disabled singled out?

It seems to me that we should be enshrining some rights for them in our constitution. If you are not sure what kind of rights they are, perhaps the wording does not have to be as tight as in some other cases, but surely to goodness there can be some reference that we cannot discriminate against the handicapped.

Mr. Chretien: I referred in my speech that we have enacted some legislation in relation to the handicapped in the last four years. There will be some more. We still have the Human Rights Commission working on that and we have to prepare some amendments.

But we have opened up the clause so that the clause is not limiting the type of discrimination to the enumeration of discrimination as mentioned.

Just to give you an example. In the Charter of Rights as presented by Mr. Diefenbaker, the word “age” was not there at that time, but over the years this has gained maturity and it is finding its place there, and the first enumeration we had was limiting the type of discrimination. We have opened up to other types of discrimination that can be covered by the courts if the Parliament or assemblies do not take care of the problem.

So I do think that it is a very important amendment but we do not want to have the problem of definition at this time because it was creating too many difficulties.

Mr. Nystrom: In your personal opinion, Mr. Minister, has the right to enshrine the rights of the handicapped matured by this time?

Mr. Chretien: If there is positive discrimination against handicapped and nobody is acting, in my reading of that section, the courts could intervene.

Mr. Nystrom: Why not enshrine it then if it has matured?

Mr. Chretien: They are, because the clause is open…

The Globe and Mail January 13, 1981

Disabled out in the cold, spokesman at CNIB says

Tuesday, January 13, 1981

The Liberal Government’s refusal to expand equality rights to include the handicapped makes a mockery of Canada’s participation in the international year of the disabled, a spokesman for the Canadian National Institute for the Blind says.

Rather than moving to protect the handicapped, Ottawa has decided to let discriminatory laws remain on the books, said David Lepofsky, a CNIB director who appeared before the parliamentary committee on the constitution last month.

Mr. Lepofsky said Justice Minister Jean Chretien’s remarks in making the announcement “have absolutely no relation to reality. “He’s saying that the term ‘handicapped’ is too vague and that no one will know what it means. That’s absolutely ridiculous – it’s very clear what we’re talking about.” Mr. Lepofsky also criticized Mr. Chretien for suggesting that entrenched protection for the physically and mentally disabled would only duplicate existing human rights legislation. On the contrary, he said, much of the current legislation is concerned only with discrimination in the workplace or in rental agreements.

“Those provincial statutes don’t address themselves to all the other provincial and federal laws which discriminate against the handicapped,” Mr. Lepofsky said.

He cited laws which prohibit blind people from sitting on juries in some provinces, deny minimum wage protection to some handicapped people and forbid some mentally handicapped

couples from marrying.

Hospitals Are Near the Breaking Point, but Only “The Pointer”, a Local Mississauga Online News Publication, Has Reported How the Ford Government Has Announced No Plans to Ensure that Any Triage or Rationing of Life-Saving Medical Care Won’t Discriminate Against Patients with Disabilities

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Hospitals Are Near the Breaking Point, but Only “The Pointer”, a Local Mississauga Online News Publication, Has Reported How the Ford Government Has Announced No Plans to Ensure that Any Triage or Rationing of Life-Saving Medical Care Won’t Discriminate Against Patients with Disabilities

January 11, 2021

            SUMMARY

To begin our volunteer advocacy for 2021, we wish one and all a happy, healthy, safe and barrier-free new year!

We regret that 2021 begins with the distressing news that soaring COVID-19 infection rates have brought some Ontario hospitals to, or near to, the breaking point. The risk is real that they won’t have capacity to provide life-saving critical medical care to some patients that need it.

Yet even over ten months into this pandemic, we still have no indication that the Ford Government has put in place a system for rationing or triaging critical care that won’t discriminate against patients with disabilities. This triage issue is not some remote hypothetical possibility. It is getting closer and closer here. It has already arrived in parts of the US.

In the face of this, it is deeply disturbing and inexplicable that our major media outlets have given this issue no coverage at all since we issued our amply-documented December 21, 2020 news release. It warns of our serious human rights worries. Its headline read: “Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities”. We have repeatedly emailed and/or tweeted that news release and its key points to major news organizations and to a good number of individual reporters.

As far as we have found, only one news outlet at all has covered this issue since that news release. It is an excellent article by reporter Isaac Callan of “The Pointer”, an online news website in Mississauga Ontario that normally focuses on local Mississauga issues. We set out that excellent report, below. We commend The Pointer for showing leadership in this area. That report shows why this is such an important and newsworthy story.

Where is the CBC on this issue? Or the Toronto Star, or CTV, City TV or Global News? Where is the Globe and Mail, or the National Post or the Sun newspaper chain? Where are all those all-news radio stations and cable TV stations?

Since the pandemic started, people with disabilities have disproportionately borne its brunt. A clear majority of those dying from COVID-19 are people with disabilities, including those living in long term care homes. The fact that there is a serious risk that those bearing the worst brunt of this disease might be de-prioritized in access to life-saving critical care should be a top headline, not a story that so many in the media are now not covering at all. This news story cries out even more for media attention since the Ford Government has refused to answer any of our six letters on this issue, and, in the news report below, refused to even answer a media inquiry on this issue.

Please let the media know that this is an important issue and that it deserves their attention. You and the media can see the whole story on this triage issue by reading our December 21, 2020 news release and visiting the AODA Alliance website’s health care page.

There have been 711 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 even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past ten months.

            MORE DETAILS

The Pointer January 8, 2021

Originally posted at https://thepointer.com/article/2021-01-08/already-in-crisis-mode-ontario-hospitals-have-no-protocol-for-who-gets-priority-treatment-human-rights-advocates-say

Already in ‘crisis mode’, Ontario hospitals have no protocol for who gets priority treatment, human rights advocates say

By Isaac Callan – Local Journalism Initiative Reporter

Jan 08, 2021 – Brampton, Mississauga

As ICU beds continue to fill up, a nightmare is looming.

Doctors in Ontario could soon be forced to undergo the harrowing process their peers in Italy and New York experienced in the spring – choosing who lives and dies when intensive care reaches its maximum capacity.

That’s the question many fear as COVID-19 patients continue to pile into intensive care beds in Ontario. In Peel Region, hospitals are at breaking point, cancelling surgeries and transferring some patients to neighbouring sites.

Wednesday saw 361 ICU beds occupied across Ontario, the highest number since the pandemic began. A field hospital in Burlington has opened its doors, signalling the need to begin using emergency backup resources.

Mississauga’s intensive care beds are 99 percent full, according to Trillium Health Partners.

A field hospital set up by the Joseph Brant Hospital in Burlington to handle a rising number of COVID-19 patients in need of care.

In the face of a situation rapidly spiralling in the wrong direction, disability advocacy groups in the province have drawn attention to an urgent problem. After months of advocacy and countless requests, they say Ontario doesn’t have a triage protocol in place to decide who will get access to scarce, life-saving treatment if hospitals are completely overwhelmed.

“What we have right now is a vacuum,” David Lepofsky, the chair of Accessibility for Ontarians with Disabilities Act (AODA) Alliance, told The Pointer. “We have written to the Minister to say the danger of the vacuum is that if triage does take place, individual doctors will apply their individual discretion and that could force or lead a doctor to [discriminate against those with disabilities].”

The Ontario Human Rights Commission, which has been working with AODA Alliance and the government, says the situation is deeply concerning.

“Ontario is now in crisis mode as it struggles with rapidly growing COVID-19 cases,” Ena Chadha, chief commissioner for the Ontario Human Rights Commission, told The Pointer. “In such a crisis, a triage protocol is urgently needed now, and even a temporary one is better than providing no human rights guidance to hospitals. Even if more modifications are needed, an interim protocol will help until final consultations and any required changes can be made.”

The lack of set protocols within hospitals is the latest in a saga around triage that has dragged out since March.

At the very beginning of the pandemic, fearing an unmanageable surge in COVID-19 patients, the government of Ontario consulted with its (advisory) Bioethics Table and asked them to recommend a triage protocol. The system is designed to give doctors and healthcare workers a codified list or guide to decide who should receive scarce resources, or life-saving equipment like a ventilator, if ICU beds run out, removing individual judgement from the process.

A well designed protocol is key to transparency, the removal of bias and also important for the mental health of doctors working on the frontlines. Theoretically, it means life and death decisions will be objective.

ICU at Mississauga Hospital and Credit Valley are 99 percent full.

In March, following advice from the Bioethics Table, the Province put a triage protocol in place, issuing a memo to hospitals across Ontario. But a leaked copy of the original protocol stirred fears among the province’s disability community, with activists arguing it fundamentally discriminated against those living with a disability and risked excluding them from vital ICU treatment. In particular, the framework relied on the Clinical Frailty Scale (CFS) to make decisions, a system to assess the health of those over 65.

“The reason it [the CFS] was designed was actually quite valiant, it was quite anti-discriminatory in reasons,” Mariam Shanouda, a lawyer with ARCH Disability Law Centre, told The Pointer. “Doctors found that persons who were older, going to their doctor, would often get type-cast as ‘You’re just aging’ … when that’s not appropriate, it should be an individual assessment.”

But, in its theoretical application more broadly, issues begin to appear. If used to assess persons living with disabilities, the CFS can wrongly push them down the triage priority list and risk excluding Ontarians with disabilities from life-saving beds during a surge.

“There’s very little understanding of persons with disabilities by the medical profession,” Shanouda added. “There is [a] constant misunderstanding of someone using a mobility device being frail, when that’s not true, there’s a difference between frailty and disability.”

Following a period of concerted advocacy by AODA Alliance and ARCH, supported by the Ontario Human Rights Commission, doctors from the Bioethics Table sat down to revise the document. Across several meetings and submissions, they listened to concerns about discrimination within their framework and, on September 11, they released a new draft.

“The earlier draft version (‘Clinical Triage Protocol for Major Surge in COVID Pandemic’, dated March 28, 2020) should not be implemented or relied upon,” the new document states under a series of recommendations for “immediate” next steps. It said the new September draft should be circulated instead.

A month later, Lepofsky says, the Province repealed its initial and discriminatory framework, but did not replace it, leaving a vacuum.

“The Bioethics Table actually told them that the very protocol that they circulated last March should be cancelled because it is discriminatory against people with disability,” he said. “In other words, they agreed with the points we made.”

Disability advocates have seen an improvement in the framework, but still have grave concerns.

The details of the Table’s initial protocol terrified the activist and former government lawyer. “Through our discussions with them, we learned more and more about what they were proposing and we were showing serious human rights violations, discrimination issues,” he said. “Serious [issues], not ‘Gee, I wish it were nicer’ or ‘Could you do it a little better?’”

Getting information from the government has been a frustrating experience. The revised September protocol was not released publicly until December, after months of advocacy, while the now cancelled triage protocol has never been public. Lepofsky has written 6 letters to Health Minister Christine Elliott, with precious little to show.

The most recent draft protocol, completed on September 11, has issues of its own, the AODA Alliance says. Lepofsky questions if triage rules can simply be sent out by the Ministry without being debated by MPPs or subject to wide-ranging consultations since, in a surge situation, they will directly decide who lives and dies. He is also concerned with a suggestion patients could be triaged out of intensive care, even if they are already on life support.

“If a major surge is imminent … all patients who are currently receiving critical care resources should be reviewed,” the protocol says, suggesting some patients should be “informed that Level 1 triage may be initiated and what the consequences to the patient would be.”

Elsewhere, the document’s authors also suggest “a frequent reassessment of admitted patients by the clinical team for any indication that the patient is no longer responding to treatment, or where the patient’s clinical trajectory suggests that their predicted short-term mortality has substantially worsened from when they were admitted.”

“We have serious questions about — forget the ethics — the legality from a civil or criminal perspective,” Lepofsky said. “Somebody is going to have to take a look and explain why that isn’t homicide.”

Perhaps the biggest concern for disability advocates in Ontario is a suggestion by the government that a fair triage protocol isn’t possible in the current time frame. After admitting their initial draft was lacking, the September replacement makes constant reference to the need for further work to be done.

“It should be noted that no tool has been designed and validated for ethical triage decision-making of this sort, and tools that are normally used may be problematic when applied for this purpose,” the report states. Its authors appear to be admitting defeat and saying the triage question, which they have had almost a year to study, can’t be answered during the pandemic.

“You get a kind of discriminatory triage protocol or you get no triage protocol at all,” Shanouda lamented. “That’s not acceptable, we can’t settle for that.”

During an emergency round table discussion organized by the Ontario Human Rights Commission in December, Lepofsky says a government doctor, Andrew Baker, said a fully formed framework may have to wait. He said that ‘life years saved’, a common approach, would likely be used in the interim, a measure that can also be subjective or lead to discrimination. “What does that mean?” Lepofsky said. “Human rights: wait until COVID is over. Well, that is singularly appalling.”

The Ministry of Health acknowledged a request for comment on the triage protocol Monday and another specifically on the issues raised by Dr. Baker, but did not provide a response in time for publication.

“Without an equitable triage protocol in place, individual doctors may have to make decisions that could affect people’s legislated human rights,” Chadha said. “There are many important considerations. Should decisions be made on a first-come first-served basis? That assumes everyone has equal access. Should decisions be made based on who presents as the sickest? Based on who is most likely to survive? Based on who has the longest years to live (predictive mortality)?”

“The Ontario Human Rights Code requires that all people receive equitable treatment in services regardless of whether they have a disability, are elderly, or have lived experiences that make them more vulnerable to experiencing health impacts that affect their medium-and long-term survival,” she added.

For disability advocates, the experience of slow moving government has been frustrating. Despite buying itself time in the spring and summer, Ontario appears to have wasted valuable months and now finds itself without an effective or equitable set of rules to decide who will receive hospital beds and ventilators if they run out.

Shanouda says she hopes to avoid it, but legal action is not out of the question.

“If you do get to litigation, that means lives may have been lost,” she said. “Persons with disabilities should not be casualties here.”

Email: [email protected]

Twitter: @isaaccallan

Tel: 647 561-4879

Looking Back at the Stressful 2020 and Forward to the Hopeful 2021 – a Year-End Report to Our Many Grassroots Accessibility Supporters from the AODA Alliance

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Looking Back at the Stressful 2020 and Forward to the Hopeful 2021 – a Year-End Report to Our Many Grassroots Accessibility Supporters from the AODA Alliance

December 24, 2020

SUMMARY

This overwhelming year is almost over! Here are reflections on what we’ve done this year in our non-partisan campaign for accessibility and full inclusion for people with disabilities, and on what we will face in 2021. The battle for accessibility was more uphill this year, with previously-unimaginable barriers being created for people with disabilities. Yet we battled on, with the same determination, and honoured to be part of some successes amidst the many new challenges. And we are ready for whatever awaits us next year!

The AODA Alliance will today go off-line for the next while. We thank everyone who has supported our cause and who had time, amidst all this year’s ordeals, to help with our cause. We thank both the many individuals and organizations with whom we’ve had the privilege of sharing ideas, teaming up and working together.

For our cause’s many wonderful supporters, every time you retweet, every one of your social media posts, every one of your letters to the editor, every email you send to a politician, every bit of feedback you share with us, or every time you forward to others our AODA Alliance Updates, all really helps the cause. You put the indispensable wind in the sails of our shared volunteer efforts. Those efforts are the ripples that combine to create the tidal wave of our unstoppable movement!

And a special thanks to all the politicians and public servants out there who have tried to break the irrational log jams we keep facing, and who tried to make real progress on accessibility for people with disabilities. Your efforts are often not seen by the public, but are nevertheless important and very much appreciated. We need you to re-double your efforts next year, just as we will re-double ours.

If any of you, reading this, have time to do just one more little thing to help us over this holiday period, please share with parents of students with disabilities, teachers, and school board officials our successful new online video that gives practical tips to parents of students with disabilities on how to effectively advocate for their child’s needs at school. In the two months since we’ve posted it online, it has been viewed over 1,000 times! Very positive feedback from parents, teachers and school board officials make it clear that this video would benefit all parents of the one third of a million students with disabilities in Ontario schools. Here is the link for you to share:

https://www.youtube.com/watch?v=TtadvCvcGC0

As detailed below, next year there will be a great deal for us to do. There have been 693 days, or almost 22 months, since the Ford Government received the ground-breaking and blistering final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past nine months.

We wish everyone a happy, accessible and safe holiday season, replete with mask-wearing and social distancing whenever these are needed. We hope everyone has a happy and healthy new year.

MORE DETAILS

1)     A Look Back at 2020

What a year! For the past ten months, almost all our efforts have focused on battling against the unexpected serious new barriers and hardships imposed on people with disabilities by and during the COVID-19 pandemic. These many efforts are detailed on the AODA Alliance’s COVID-19 web page.

Our two top priorities during the pandemic have been exposing and confronting the new barriers facing students with disabilities during distance learning and while attending re-opened schools, and the barriers facing patients with disabilities in our health care system. Among other things, a great deal of our effort has gone into working with other disability advocates and experts on the uphill battle to protect patients with disabilities against the frightening risk of disability discrimination in access to life-saving critical medical care, if rationing or “triage” of that care becomes necessary due to skyrocketing COVID-19 infection rates.

The media has focused far too little attention on this frightening triage issue. The media has not yet reported on the fact that culminating on October 29, 2020, we and our disability community allies successfully pressured the Ford Government to eventually withdraw its discriminatory March 28, 2020 critical care triage protocol that the Government had earlier sent to all Ontario hospitals. The media has not yet reported on the fact that we and our allies successfully pressured the Ford Government to finally make public the secret September 11, 2020 recommendations on critical care triage which the Government received from its external Bioethics Table. Likewise, the media has so far told no one that we and our allies successfully convinced that Bioethics Table this past summer to make important improvements that we sought to its recommendations on this triage, though not all the improvements we sought.

Even more disturbing, the media has not yet reported on the fact that we made public that the triage recommendations that the Ford Government is now considering still threaten disability discrimination, aren’t shown to have a proper legal mandate, and could lead some patients to have life-saving critical care removed from them over their objection, if rationing becomes necessary. As one illustration of the kinds of triage we fear, a very disturbing report was published on National Public Radio in the US on December 21, 2020 about disability discrimination in hospital triage during COVID-19. The public has not been told the fact that the Ford Government has refused to even answer any of our six successive letters to the Minister of Health on this life-and-death issue.

Amidst our many strategies on the COVID-19 front, the AODA Alliance teamed up with the Ontario Autism Coalition this year to hold three successful online virtual town hall meetings on the Government measures needed to meet the urgent needs of people with disabilities during this pandemic. Taken together, the online video recordings of these town halls have been viewed several thousand times.

Before and apart from the pandemic, we had our volunteer plates already full, if not overflowing, with important work on multiple fronts. We have been battling to protect against the introduction of electric scooters (e-scooters) into Ontario cities. E-scooters endanger people with disabilities, seniors and others. We have been campaigning to rein in the arbitrary power of school principals to refuse to admit a student to school – a power that has been used in ways that discriminate against students with disabilities.

On behalf of the AODA Alliance, Chair David Lepofsky has been an active member of the K-12 Education Standards Development Committee. It has been developing detailed recommendations on what the promised K-12 Education Accessibility Standard should include. In July, that Standards Development Committee submitted to the Ford Government detailed recommendations on what it should do now to address the serious new barriers facing students with disabilities during COVID-19. These incorporate recommendations that the AODA Alliance made public earlier in the summer.

Both before and during the COVID-19 pandemic, we have managed to consult on, prepare and submit briefs and submissions on a wide range of subjects, including briefs on what the promised Health Care Accessibility Standard should include, what the promised Post-Secondary Education Accessibility Standard should include, the dangers posed by electric scooters, the dangers to people with disabilities threatened by possible triage or rationing of critical medical care, the measures needed to protect students with disabilities during COVID-19, a brief on the unfair power of school principals to refuse to admit a student to school, and a brief to the Canadian Accessibility Standards Development Organization on the federal accessibility standards that we need it to create. All the AODA Alliance’s briefs and submissions can be perused by visiting our website’s briefs page.

We worked especially hard to get media coverage of our issues. It has been harder to succeed in this effort during COVID-19 than before the pandemic. Nevertheless, we managed to secure some coverage and will continue to try.

With all this, there are still issues that we have not been able to address. This is because these are all volunteer efforts.

2)     A Look Forward to 2021

As we gaze into our accessibility crystal ball, we know the following to be certain for next year:

  1. As of the start of 2021, there will only be four years left for the Ontario Government to fulfil its duty under the Accessibility for Ontarians with Disabilities Act to lead Ontario to full accessibility for 2.6 million Ontarians with disabilities. In its two and a half years in power, the Ford Government has announced no comprehensive plan to achieve this goal. As of January 31, 2021, it will have been two years since the Government received the final report of the AODA conducted by David Onley.

Over that two and a half years in power, the Ford Government has not made any significant progress in speeding up our trip down the road to full accessibility. As was the case this year once again, on the few occasions when it announced anything on accessibility, little if anything was announced that was new.

That means the onus will be on the Ford Government in 2021 to speed things up even more. This needs to start with the Government unveiling a comprehensive plan for the next four years to get us to full accessibility by 2025. This plan must be much more than efforts at educating the public on the importance of accessibility for people with disabilities.

The Government has ample basis for devising such a plan. It has the Onley Report. It has recommendations from various Standards Development Committees. It has the comprehensive AODA Alliance brief to the Onley AODA Independent Review we submitted and made public on January 15, 2019, almost two years ago. That brief offers perhaps the most comprehensive roadmap for the Government to lead us to full accessibility by 2025.

  1. Our campaign against the disproportionate barriers and burdens that COVID-19 imposes on people with disabilities will, sadly, have to continue in the new year. This will include the priority areas we have addressed to date, as well as possible new areas we have not yet anticipated.
  1. We will all be called on some time early in the new year to give feedback on forthcoming reports and draft recommendations from several Standards Development Committees. Three Standards Development Committees have been working for the past few years on draft recommendations in the areas of barrier-free health care for patients with disabilities, barrier-free education for Kindergarten to Grade 12 students with disabilities and barrier-free education for college and university students with disabilities.

We understand that the Health Care Standards Development Committee has already submitted its draft recommendations to the Ford Government. The K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee are very close to finishing up their draft recommendations and submitting them to the Government. When a Standards Development Committee submits draft recommendations to the Government, the Government is required to publicly post them for at least 45 days, so that the public can submit feedback.

Public feedback is then given to the Standards Development Committee. The Standards Development Committee will then meet again to go over that public feedback and take it into account as it finalizes its final report to the Government. When the Government makes any draft recommendations from a Standards Development Committee public next year, these draft recommendations will take a good chunk of time for individuals and community organizations to review and to provide feedback to the Standards Development Committee. For example, the K-12 Education Standards Development Committee report is expected to be around 120 pages long, according to AODA Alliance Chair David Lepofsky, a member of that Standards Development Committee.

We therefore call on the Government to immediately make each report and its draft recommendations public as quickly as possible. As soon as it is translated to French, it should be posted online and publicized, and not held back. The Government should also extend the 45 days minimum for the public to give feedback, because these reports will require some time to review.

The Government should now make public the draft recommendations from the Health Care Standards Development Committee. Finally, the Government should give the public forewarning that it will soon be releasing a Standards Development Committee report, rather than simply posting it one day with no forewarning. That would allow individuals and organizations to be ready to review it when it is made public.

Once a Standards Development Committee‘s draft recommendations are made public, the Government should convene accessible public virtual town halls or forums for the public to give feedback on those draft recommendations. It should not just invite written feedback from the public.

  1. We expect that the Employment Standards Development Committee will soon deliver its final report to the Government on needed revisions to the Employment Accessibility Standard, if that report has not already been submitted. The Government will be required to make it public. The Government should do so as quickly as possible, without months of delay (as was the case for the final report of the Information and Communication Standards Development Committee).
  1. We will need to press the Government to strengthen the existing AODA accessibility standards in the areas of transportation, employment, and information and communication. It has authority to do so having received final reports from the Information and Communication Standards Development Committee and the Transportation Standards Development Committee, and based on the final report from the Employment Standards Development Committee (that the Government has either already received, or will soon be forthcoming). In 2021, the Government should immediately consult the public on those recommendations and on anything else needed to strengthen existing accessibility standards in these areas.
  1. We will need to continue to press the Ford Government to appoint an AODA Standards Development Committee to review the 2012 Public Spaces Accessibility Standard (already three years overdue) and to recommend a comprehensive and long overdue Built Environment Accessibility Standard. So far, from what we have seen, the Government’s only announced effort in the area of accessibility of the built environment, its diversion of $1.3 million to the Rick Hansen Foundation’s ‘private accessibility certification program,’ has been a waste of public money. We have seen no proof that it has led to a single barrier being removed.
  1. Our battle will have to continue in 2021 to protect people with disabilities from the serious dangers posed by e-scooters, as Toronto and other municipalities unjustifiably continue to consider the possibility of allowing them, despite their proven serious dangers. The corporate lobbyists for the e-scooter rental companies will no doubt keep pouring more money into their feeding frenzy of backroom lobbying at Toronto City Hall and elsewhere.
  1. We will need to redouble efforts to get the mainstream media to cover disability accessibility issues. As noted above, despite some successes, during COVID-19, we have found this harder and harder to achieve, for reasons that remain elusive to us.
  1. 2021 is the year before the next provincial general election. We will need to get to work well in advance of 2022, planning our non-partisan accessibility campaign for the election. That means that in 2021, we will need to work on coming up with the list of election commitments that we will ask the major political parties and their candidates to make in 2022.

Happy Holidays to all. This is the AODA Alliance, signing off for now.

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

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

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

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

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

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

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

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

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

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

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

Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com

For more background on this issue, check out:

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

Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues

December 18, 2020

SUMMARY

Yesterday, the AODA Alliance joined the ARCH Disability Law Centre and a number of other advocates from Ontario’s disability, racialized and Indigenous communities, all invited by the Ontario Human Rights Commission to a virtual roundtable discussion. It focused on the September 11, 2020 draft critical medical care triage protocol that was finally made public a week earlier. We have campaigned for three months to get that document made public.

Given the number of participants, we could only scratch the surface on this life-and-death issue during this two-hour roundtable. The painful fact that that day, Ontario had another record-breaking number of new COVID-19 infections made this discussion especially urgent and long-overdue.

A number of new important issues were identified at this roundtable by a spectrum of participants. All were in strong agreement on a range of concerns. The AODA Alliance’s concerns were echoed or endorsed by a number of participants.

Some of the key points which the AODA Alliance raised are spelled out in the newest letter to Ontario Health Minister Christine Elliot from the AODA Alliance, dated December 17, 2020 and set out below. We hope that the Minister will this time respond to our letter. The Ford Government has not answered any of our earlier letters to her on this topic.

Present to receive feedback at the roundtable were representatives from the Ontario Human Rights Commission and the Ontario-Government’s external Bioethics Table. As well, there were some representatives from the Ford Government, including from the Health Minister’s office, from Ontario Health, and from the Government’s internal Critical Care Command Centre. We asked to be sent the names and contact information for these provincial officials and are waiting to hear back. We also asked to be sent all the information on the Bioethics Table’s September 11, 2020 draft critical care triage protocol that the Government has sent to hospitals. No one spoke up to agree to send this to us.

This entire triage issue remains in flux. We will keep you posted. With COVID-19 infections rising and hospitals getting filled to capacity, we fear that triage may be taking place right now.

Send your feedback to us at aodafeedback@gmail.com.

For more background on this issue, check out:

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

MORE DETAILS

December 17, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

December 17, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: Christine.elliott@ontario.ca

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

We urgently write to follow up on our five unanswered letters to you dated September 25, November 2, November 9, December 7 and December 15, 2020. These ask about the Ford Government’s plans for deciding which patients would be refused life-saving critical medical care that they need, if the record-breaking surge in COVID-19 cases overloads Ontario hospitals and requires rationing or “triage” of critical care beds and services.

This morning, we took part in a two-hour virtual roundtable, convened by the Ontario Human Rights Commission and the Government-appointed COVID-19 Bioethics Table. It was convened on very short notice to gather feedback on the Bioethics Table’s recently-released September 11, 2020 proposed critical care triage protocol.

These are among the many urgent points that arose at or from the discussion at that roundtable:

  1. None of us invited to that roundtable from the disability, racialized or Indigenous communities had had anywhere near the time we needed to properly review the detailed 36-page September 11, 2020 draft critical care triage protocol. Such virtual face-to-face consultations are vital but must be preceded by enough time to prepare. Sending in written submissions is no substitute. Don’t now consider that the consultation check box can be ticked.
  1. No one has shown us that anything in the proposed triage protocol is authorized by law. We have raised this concern time and again. The most interesting and thorough discussion with the Bioethics Table on how triage should be carried out is utterly irrelevant if the protocol, whatever it says, is not properly mandated by law – a law that passes constitutional muster.

For example, it will be shocking and deeply disturbing to many if not most to learn the draft triage protocol would have doctors under certain triage circumstances actually withdraw critical care services from a critical care patient who needs those services and who is in the middle of receiving those insured medical services. How can a mere memo from some bureaucrat in the Ministry of Health or from Ontario Health purport to authorize that, if there is no legislative authority for it? Couldn’t that give rise to possible criminal responsibility, for those taking such action? We don’t believe that a provincial memo overrides the Criminal Code of Canada.

  1. It appeared that none of us, from whom input was being sought, could understand from this 36-page document exactly how a doctor is to specifically decide who will be refused critical care under the September 11, 2020 draft triage protocol. We cannot give the kind of detailed input that is needed without that being clarified. We wrote the Bioethics Table co-chairs about this in advance of this meeting. No such clarification was provided.
  1. An extremely worrisome revelation was made in the only statement we have heard from anyone within the Government’s internal critical care triage infrastructure. Dr. Andrew Baker identified himself as a member of the Ministry of Health’s Critical Care Command Centre. Right near the end of the roundtable, responding to feedback at the roundtable, Dr. Baker stated that doctors value life inherently, and that at present, doctors “default to life years, when we have finite resources. One principle, life years.”

What we take from this is that at present, such triage decisions would be made based on “life years saved.” He went on to say that a new approach to triage, embodying the concerns raised at the roundtable (with which he seemed to find real merit), would in effect have to wait for a future time. That would have to be after this pandemic is over.

That statement in effect summarily and categorically dismissed all the serious human rights and constitutional concerns we had raised for two hours as not ready to be implemented during this pandemic, even if critical care triage becomes necessary.

We strongly disagree. The Government cannot give up on this now. The thought that we might not have time to put these principles into action now is especially cruel, since our community has been pleading with your Government since early April to directly consult us on this issue.

Dr. Baker’s endorsement of using “life years saved” points to an approach riddled with discrimination because of age, disability, or both. Minister, Dr. Baker’s single statement crystalizes so many of our concerns. It reveals that whatever is written in this or other triage protocols won’t matter at the front lines, and that vulnerable seniors and people with disabilities, among others, now have a great deal to worry about.

This requires you to immediately take over personal leadership on this issue, and to let our vulnerable communities speak directly to you and your senior officials.

  1. From what we can determine, the September 11, 2020 draft triage protocol would have a doctor or doctors assess, based on an individual clinical assessment, if a patient, needing critical care, has less than 12 months to live. As I pointed out at the roundtable, Dr. James Downar, of the Bioethics Table, has previously told us that when doctors assess whether a patient has less than 3 months to live in order to decide if that patient should be allowed to go into palliative care, doctors “lie”. By this, we understand him to mean that they try to make a result-oriented assessment to get palliative resources for their patient.

If doctors routinely lie for assessing a patient’s likely mortality within three months, we have every reason to fear that they could do the same when the figure is changed from three months to twelve months, in connection with critical care triage decisions. We realize that there is a difference between admission to palliative care on the one hand, and admission to critical care on the other. However, for current purposes, that difference does not make a difference.

  1. The September 11, 2020 draft critical care triage protocol, like the two earlier versions that the Bioethics Table produced this year, give these life-and-death decisions over to doctors. As addressed in our next point, we think this needs reconsideration. It provides no appeal from those doctors to an outside independent body, such as a court or the Consent and Capacity Board. Such an appeal is needed. Moreover, it proposes to immunize doctors and other health care professionals making these life-and-death decisions from any accountability. It states that the protocol should:

“4.       Ensure liability protection for all those who would be involved in implementing the Proposed Framework (e.g., physicians, clinical teams, Triage Team members, Appeals Committee members, implementation planners, etc.), including an Emergency Order related to any aspect requiring a deviation from the Health Care Consent Act.”

It is certainly questionable whether that can be done. We believe it is beyond question that it should not be done.

  1. As we also emphasized at the roundtable, it is not clear to us that these purely medical triage criteria are the way for Ontario to go. Other non-medical triage criteria outside the preserve of doctors are worth considering.

Minister, please talk to us. Have your Ministry officials talk to us. Don’t wait until it is too late.

Stay safe.

Sincerely,

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

Enclosure: December 11, 2020 email from AODA Alliance Chair David Lepofsky to Jennifer Gibson, Bioethics Table co-chair

cc:

Premier Doug Ford premier@ontario.ca

Helen Angus, Deputy Minister of Health helen.angus@ontario.ca

Raymond Cho, Minister of Seniors and Accessibility Raymond.cho@ontario.ca

Denise Cole, Deputy Minister for Seniors and Accessibility Denise.Cole@ontario.ca

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, Mary.Bartolomucci@ontario.ca

Todd Smith, Minister of Children, Community and Social Services todd.smithco@pc.ola.org

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission cco@ohrc.on.ca

Jennifer Gibson, Co-Chair, Bioethics Table jennifer.gibson@utoronto.ca

Dianne Godkin, Co-Chair, Bioethics Table Dianne.Godkin@thp.ca

Send Us Your Feedback on the Information and Communication Standards Development Committee’s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act

Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Send Us Your Feedback on the Information and Communication Standards Development Committee‘s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act

December 17, 2020

            SUMMARY

Over the past weeks, there has been a ton of breaking news on different fronts of our never-ending campaign for accessibility for people with disabilities. Before we shut down for the holidays, we’re going to try to catch you up on some that we have not earlier been able to address.

On or around November 16, 2020, the Ford Government made public the final recommendations of the Information and Communication Standards Development Committee. We set out those final recommendations below.

What is this about and what does it mean for 2.6 million Ontarians with disabilities? The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is an enforceable and binding provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for action.

Almost ten years ago, back in June 2011, the Ontario Government enacted the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions requiring the accessibility of information and communication. Those provisions are often called the 2011 Information and Communication Accessibility Standard.

Under the AODA, the Ontario Government is required to appoint a Standards Development Committee five years or less after an accessibility standard is enacted, to review it and see if it needs to be improved. Therefore, in 2016, the Ontario Government appointed the Information and Communication Standards Development Committee to review the 2011 Information and Communication Accessibility Standard, and to recommend any revisions needed so that this accessibility standard would best achieve the AODA’s purposes.

After meeting over a period of months, the Information and Communication Standards Development Committee came up with a package of draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them. The Ontario Government was required to do this under the AODA.

The public then had a few weeks to give feedback to the Standards Development Committee on its draft recommendations. For example, the AODA Alliance submitted a 73 page brief to the Information and Communication Standards Development Committee on November 25, 2019. Our brief commended much of what was in the Committee’s draft recommendations. It also offered extensive feedback and recommendations to the Information and Communication Standards Development Committee.

That Standards Development Committee was then required to meet again to consider all the feedback it received from the public. It did so. Among other things, on January 22, 2020, AODA Alliance Chair David Lepofsky was given an opportunity to present in person for 30 minutes to the Committee.

The Information and Communication Standards Development Committee then finalized its package of recommendations for revisions to the Information and Communication Accessibility Standard. On February 28, 2020, the Standards Development Committee submitted those recommendations to the Ford Government. The Government is required to make those recommendations public, so the public can give the Government feedback on them. For no discernible or justifiable reason, the Ford Government held off making the Standards Development Committee’s final recommendations public for eight months.

What comes next? Under the AODA, the Government can enact revisions to the Information and Communication Accessibility Standard. It can make all, some or none of the changes that the Information and Communication Standards Development Committee recommended. It can also enact revisions beyond those that the Standards Development Committee recommended.

We and the public therefore now have an opportunity to take our case for revisions directly to the Ford Government. We therefore invite your feedback on the Information and Communication Standards Development Committee‘s final recommendations, set out below. Given the incredible number of issues we are now addressing, we have not yet had a chance to analyze the Standards Development Committee’s final report and recommendations. You can always send us your thoughts by emailing us at aodafeedback@gmail.com

Under the AODA, the Government is required to post the Standards Development Committee’s final recommendations for 45 days. Sadly, the Government under successive premiers has at times followed an irrational practice of taking down those recommendations after the minimum time period that the AODA requires them to be posted. Nothing would stop the Government from leaving them up and visible to all on the internet on a permanent basis. That would provide greater openness and accountability for the Government and the AODA itself.

Despite the Government’s past practice in this area, the AODA Alliance will continue its practice of leaving such reports and recommendations permanently posted on our website.

If the Government decides to make revisions to the Information and Communication Accessibility Standard, the AODA requires the Government to post the wording of the draft regulation it proposes to enact, for public comment. We will let you know if the Government does this.

We offer two examples here of the need for prompt action in this area. First, as was pointed out in the December 8, 2020 panel on accessible education on The Agenda with Steve Paikin, TVO’s online educational materials for school students doing distance learning are still replete with accessibility problems. TVO has announced no detailed plan of action to fix these. TVO is owned and operated by the Ontario Government.

Second, just weeks ago, the Ford Government’s Accessibility Minister issued an invitation in an inaccessible broadcast email to an upcoming event where he was to make an announcement on accessibility. The Government apologized for this. As it turned out, nothing new was announced at the event in question.

The Ford Government has repeatedly claimed to be “leading by example” on accessibility. These incidents are an awful example by which Ontarians should not be led in the area of accessible information and communication.

So far, the Ford Government has been very lethargic in fulfilling its duties to develop accessibility standards under the AODA. For example:

  1. In the spring of 2018, weeks before the 2018 Ontario provincial election, the Transportation Standards Development Committee submitted to the Government its final report proposing revisions needed to the 2011 Transportation Accessibility Standard. That has languished on the Ford Government’s desk since it took office in June 2018, two and a half years ago. Since then, the Government has not invited any public feedback on this, and has announced no plans in this area. Ontario thus continues to have a public transit system replete with disability barriers.
  1. As noted above, the Government sat on the final report of the Information and Communication Standards Development Committee for over a half a year before fulfilling its duty to make that report public, for public input.
  1. The Government still has not fulfilled its duty to appoint a Standards Development Committee to review the 2012 Public Spaces Accessibility Standard. The Government was required to appoint that Standards Development Committee fully three years ago. The current Government is on the hook for two and a half of the three years of AODA contravention.
  1. On taking office, the Ford Government left five existing Standards Development Committees frozen and in limbo for months, before allowing them to get back to fulfil their mandatory work. We had to campaign for months to get them unfrozen. That included, among others, the Information and Communication Standards Development Committee.

For more information on our multi-year campaign to make information and communication fully accessible to people with disabilities, visit the AODA Alliance’s information and communication web page.

To see what we asked the Information and Communication Standards Development Committee to recommend to the Ford Government, check out the AODA Alliance’s November 25, 2019 brief to the Information and Communication Standards Development Committee.

There have now been an unbelievable 686 days 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 still announced no comprehensive plan of new action to implement that blistering report, including its strong recommendations regarding the development of strong accessibility standards. That delay makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, addressed in a new online video we recently unveiled.

            MORE DETAILS

Information and Communication Standards Development Committee Chair’s letter to the minister

February 28, 2020

The Honourable Raymond Cho
Minister for Seniors and Accessibility
777 Bay Street
5th Floor, Toronto, Ontario
M7A 1S5

Dear Minister,

The Information and Communications Standards Development Committee has completed our legislative review of the Information and Communications Standards. As chair and on behalf of the committee, I am pleased to submit the final recommendations report for the proposed accessibility standard for your consideration.

In meeting the provisions of the legislative review, as set out in the Accessibility for Ontarians with Disabilities Act, we re-examined the long-term objective of the Information and Communications Standards and each of the requirements. Our review included all of the Standard’s sections, the focus areas identified in the terms of reference, and additional items raised by committee members well as a limited amount of external feedback.

As you wisely requested, we considered how to make it easier for businesses and the public sector to achieve accessibility in all of the recommendations.

The report is structured in two phases, stemming from an early and clear consensus that the current structure of standards is not keeping pace with technology. Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is a proposal for culture change in Ontario.

Our committee had extensive discussions in reviewing the path to a province where people with disabilities be able to participate fully and equitably in the creation and use of information and communication. As chair, and in-line with The Honourable David Onley’s recent report, I assess that relying on the AODA and its associated Standards will never achieve that objective. More is needed, and this report only begins to address those needs.

We considered public feedback and stakeholder presentations in finalizing our recommendations. We have reflected this in the report. We thank the individuals, and organizations who provided feedback on the initial recommendations report.

As chair, and past chair of Accessibility Standards Advisory Committee, it is prudent for me to comment on the effectiveness of the Standards development process. In short, the Standard development process is broken, primarily for the reasons listed below:

  1. Research and feedback: Current sources of information on the experiences of people with disabilities and obligated organizations are too narrow and heavily biased by lobby groups. The voices of individual people with disabilities and “obligated organizations” must be sought out broadly and intentionally. The few sources that are available are gathered at the end of the process – these ongoing insights must seed the process, not merely confirm its outcome.
  2. Bounded by current standards: Understanding that legislation requires an explicit review (as is current interpretation), the process needs to be more responsive to on-the-ground realities that may or may not be covered by legislation.
  3. Timing and permanency: These reviews are by nature, periodic. Instead, permanent bodies, staffed by full time professional appointees must be the norm. These appointees must be paid a significant salary to attract the best and brightest in Ontario, or more boldly, globally. These professionals are better equipped to capture and react to insights gathered from a vastly to-be-improved research process.
  4. Encourage risk and failure: Disability regulations around the world have failed to deliver on their promise. Acknowledge that publicly. Encourage, and fund, innovation that ensures Ontario is a place where people with disabilities be able to participate fully and equitably in all aspects of the economy and society. Notice that mere accessibility is not the benchmark.

It has been an honour to chair this committee and work alongside such dedicated members who exude professionalism and are comfortable with taking risk.

We look forward to the Minister’s response on these final recommendations.

Sincerely,
Rich Donovan
Chair of Information and Communications Standards Development Committee

Final Report of the Information and Communication Standards Development Committee

 

Originally posted at https://www.ontario.ca/page/copyright-information-c-queens-printer-ontario

 

Introduction

Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this act is to benefit all Ontarians by developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.

Accessibility for Ontarians with Disabilities Act, 2005

Accessibility for Ontarians with Disabilities Act, 2005

The act became law in 2005. Its stated goal is the creation of an accessible Ontario by 2025, through the development, implementation and enforcement of accessibility standards that apply to the public, private and not-for-profit sectors.

With the act, Ontario became the first province in Canada and one of the first places in the world to bring in a specific law establishing a goal and timeframe for accessibility. It was also the first place to legally require accessibility reporting, and one of the first to establish accessibility standards so that people with disabilities have more opportunities to participate in everyday life.

Accessibility standards

The accessibility standards under the act are laws that businesses and organizations with one or more employees in Ontario must follow so they can identify, remove and prevent barriers faced by people with disabilities. These standards are part of the act’s Integrated Accessibility Standards Regulation. Currently, there are five accessibility standards, and they apply to key areas of day-to-day life for Ontarians. These are:

  • Information and Communications
  • Employment
  • Transportation
  • Design of Public Spaces
  • Customer Service

Standards review process

The act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required. These reviews are carried out by Standards Development Committees. The act also requires that committees be comprised of representatives from industries or other organizations that are affected by the accessibility standards, government ministries with responsibilities relating to those industries and organizations and people with disabilities or their representatives.

As required by the act, the committee must:

  • re-examine the long-term objectives of the standards
  • if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025, as well as the timeframe for their implementation
  • develop initial proposed recommendations containing changes or additions that the committee considers advisable, and submit them for public comment
  • based on public feedback, make such changes to the proposed accessibility standards that it considers advisable, and submit those recommendations to the minister

This report presents the final recommendations for proposed accessibility standards by the Information and Communications Standards Development Committee.

Information and Communications Standards Development Committee

The committee was established in late 2016. The committee was originally composed of 23 members, however 3 resigned during the process. As of this final report, there were 20 members, 16 of these are voting members voting members. The remaining four members, who were non-voting, were drawn from ministries which have responsibilities relating to the sectors to which the standards apply. Nine of the voting members were people with disabilities or their representatives. All members, including those who resigned, are listed in appendix A of this report.

To begin its review, the committee was provided with stakeholder feedback from the Accessibility for Ontarians with Disabilities Division of the Ministry for Seniors and Accessibility (formerly the Accessibility Directorate of Ontario). This feedback was informed by incoming written correspondence, telephone calls, compliance-related activities and consultation with stakeholders.

Their first meeting—an orientation session—was held in March 2017. Through 2017 and into Winter 2018, the committee held several meetings to complete its initial recommendations. These initial recommendations were posted for public comment between July 24th, 2019 and October 18th, 2019. On January 22 and 23, 2020, the committee met one last time to finalize this report while taking into account public comments.

The committee’s deliberations benefitted from the diverse viewpoints and knowledge that members brought to the table. After each meeting, members sought feedback from their communities and networks to share at the following meeting. This input informed voting on recommended changes.

As noted above, this document sets out the committee’s final recommendations for proposed updated accessibility standards. As outlined by the act, the Minister shall decide whether to recommend to the Lieutenant Governor in Council that the proposed standard be adopted by regulation in whole, in part or with modifications.

Approach taken by committee

The standards deal with the way organizations create and share information and outline how they are to make information and communication accessible to people with disabilities. The standards require that accessible formats and communication supports be made available on request. They also cover such areas as emergency and public safety information, websites, feedback processes, as well as educational, training and library materials and resources and training for educators.

The committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, committee members agreed that the standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.

To assist with developing this advice, the committee created the Digital Inclusion Technical Subcommittee. The subcommittee’s main task was to provide expert advice to the committee about section 14 of the regulation, which sets out the accessibility requirements for websites and web content. All members of the subcommittee are listed in appendix A of this report.

In addition, the subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system can deliver the desired outcomes.

Based on the subcommittee’s advice, the committee settled on both a short- and long-term approach to making information and communication accessible for people with disabilities. This report is divided into two parts or phases.

Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Each of these recommendations contains:

  • an explanation of the issue
  • the specific language of the recommendation as voted on
  • an explanation of the intent and desired outcome of the recommendation
  • recommended timing for implementation of the revised requirement if applicable

Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is, in effect, a proposal for culture change in Ontario. The committee recognizes that, given its potentially transformative nature, this phase may take more time to develop and implement.

The committee recognizes that due to the nature of the topic, complexity of technology, simple and plain language may not have been viewed as a priority at the beginning of the process. Based on the feedback we have received and the knowledge we have gained through this process, the committee recommends any further public communication of this report should available in a simple language version.

Phase 1

This section focuses on the Information and Communications Standards outlined in the Integrated Accessibility Standards Regulation. Recommendations in this section are listed according to the different sections under the standards.

It should be noted that throughout this report, reference is frequently made to obligated organizations. These are organizations that are expected to comply with requirements in the regulation. Obligated organizations include:

  • the Government of Ontario
  • the Legislative Assembly
  • designated public sector organizations
  • large organizations, private or not-for-profit, with 50 or more employees
  • small organizations, private or not-for-profit, with one to 49 employees

Some requirements do not apply to all these organizations. Small organizations, for example, are exempt from some requirements. This report will specify when this is the case. If it does not, the requirements being discussed may be assumed to apply to all the above obligated organizations.

Recommended long-term objective

While developing its specific recommendations, the committee continuously considered the long-term objective of the standards. The act requires all the Standards Development Committees to establish these long-term objectives, and the Information and Communications Standards Development Committee is required to re-examine the long-term objective.

The current long-term objective of the accessible Information and Communications Standards is:

That by 2025, all information and methods of communication to and from an individual will be designed to be accessible to people with disabilities consistent with human rights law, the French Language Services Act (1990) (where applicable) and inclusive design principles. The committee intends for the requirements to build upon the principle of providing accommodation to people with disabilities to preserve and enhance dignity and independence.

The committee believes that the objective above is too complicated, and recommends the following clear and simple objective instead:

That people with disabilities be able to participate fully and equitably in the creation and use of information and communication.

Part 1: Regulation in general or Sections 9 to 11

Recommendations in this section are related either to the regulation in general or to Sections 9–11 of the regulation.

Recommendation 1: Feedback requirements

Section 11 of the regulation relates to the feedback organizations receive from the public, and outlines accessibility requirements around the feedback process. The committee learned that organizations were confused about the fact that there are different requirements related to feedback located throughout the regulation. Specifically, section 11: Feedback of the Information and Communications Standards and Section 80.50: Feedback process required of the Customer Service Standards have some of the same requirements.

The committee proposes the following:

The feedback requirements in Sections 11 and 80.50 of the regulation should be combined and placed in the General Requirements section of the regulation, ensuring both the format requirements of section 11 and the specific requirement for a process in Section 80.50 about goods, services and facilities remain. In addition, the committee recommends that clear definitions of the terms “feedback” and “communication” be included.

Timeline: Immediate

The intent of this recommendation is to eliminate the confusion caused by having requirements for a feedback process dealt with in two different parts of the regulation. This change should not modify the obligations of organizations but simply make them clearer and easier to find and understand.

Recommendation 2: Usage of portable document format (PDF)

During a 2016 meeting of the Standing Committee on Finance and Economic Affairs, the standing committee discussed a proposal to ban PDFs from government use. This is because PDFs are often inaccessible. While the proposal was not approved, it was referred to this formal regulatory review process. The Information and Communications Standards Development Committee discussed the fact that PDFs are often inaccessible, and while it is possible to make them accessible, the expertise needed to make a fully accessible PDF is seldom present in obligated organizations. However, the committee concluded that while certain problems do exist with PDFs, banning them altogether is not the best solution, particularly since they work well when made properly accessible.

The committee proposes the following:

Government should not ban the use of PDFs for any obligated organization.

Timeline: N/A

The committee did discuss a number of alternative measures, including non-regulatory approaches such as increasing education for government employees on how to make PDFs accessible, but did not vote on the matter.

Recommendation 3: Final review of regulatory language

The Minister may accept in whole, in part or with modifications the committee’s recommendations once they are received. The committee recognizes that members are not usually involved in the decision-making process after its final advice is submitted. However, some recommendations for the standards are highly technical, and the committee is concerned about ensuring consistency in the interpretation of those recommendations. In particular, there is concern about technical aspects related to section 14: accessible websites and web content.

The committee proposes the following:

Government use the technical expertise of the Digital Inclusion Technical Subcommittee as a resource, as needed, to clarify intent and technical accuracy during the regulatory drafting stage related to section 14.

Timeline: N/A

The intent of this recommendation is to avoid any possible confusion regarding the intent of the committee’s recommendations and to ensure that the government can easily obtain clarification if confusion arises.

Recommendation 4: Products and product labels

The current regulation states that products and product labels are not required to be made accessible unless specifically mentioned in the standards. Stakeholders have expressed concern that a large number of goods remain inaccessible because of this exemption. The committee agreed that there should, at the very least, be a digital format available for all products and product labels where applicable. The problem is that both federal and provincial governments regulate in this area, and so making a recommendation solely at the provincial level would be ineffective.

In order to ensure a solution to this issue is coordinated between the federal and provincial jurisdictions, the committee proposes the following:

The Government of Ontario should meet with the Government of Canada to look for solutions to the problem of accessible products and product labels. These solutions may include clarifying jurisdictional authority over different products. In addition, it is recommended that Ontario meet with various industries to explore non-regulatory solutions to this issue. Medical labelling should be a priority for action.

Timeline: One year for Ontario and Canada to produce a report that sets a strategic direction on the recommendations above. If a report is not created by the governments of Ontario and Canada by this time, then the recommendation is that Ontario develop a strategy within one additional year to address this, including creating an expert committee.

The committee recognizes that the exemption of products and product labels is an accessibility barrier, but also recognizes that a solution to this problem needs to involve all levels of government that have authority over this area. The committee also recognizes that technology offers the potential for organizations to develop innovative solutions to this issue and would like the Government of Ontario to work with industries to encourage the development of non-regulatory solutions.

Part 2: section 12

The following recommendations relate to section 12 of the regulation, which requires organizations to provide accessible formats and communication supports for people with disabilities. The committee discussed this at length and have a number of recommendations regarding section 12 – Accessible formats and communication supports.

Recommendation 5: Determination of suitability

If a person with a disability asks an organization for an alternate format or communication support, that organization is required to consult with the requester about the request. The final decision on whether to provide the requested alternate format or communication support is with the organization. The committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.

The committee proposes the following:

Change regulation 12.(2) to state: “The obligated organization shall consult with the person making the request and gain agreement in determining the suitability of an accessible format or communication support.”

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The intent of this recommendation is that the final decision on the suitability of an accessible format should not be left to the organization alone. Rather, both the organization and the person requesting an alternate format should work together to gain agreement on suitability. The committee recognizes that this may create an impasse, and this is partly what motivates recommendation 7 (to follow). Despite the potential for an impasse, the committee feels this recommendation will result in improved accessibility. The committee recognizes that with this change, organizations may need time to adjust their processes, so it is proposed that it be effective six months after the amended regulation is in force.

Recommendation 6: Timely manner

Section 12 of the regulation states that organizations must provide accessible formats in a ‘timely manner,’ considering the requester’s needs due to disability. Stakeholder feedback revealed that people with disabilities and organizations often do not agree on the definition of timely manner. Specifically, people with disabilities point out that organizations are only required to take the person’s needs ‘into account’ when deciding on what would be a timely manner.

The committee proposes the following:

Change the regulation to state that organizations must provide accessible formats in a mutually agreed upon timely manner which considers the circumstances of the requester, and the urgency of his or her request.

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The idea is similar to the intent of recommendation 5, which is to ensure that important decisions that affect people with disabilities must be made with their participation. In this case, it would require that organizations and people with disabilities agree on what is meant by a timely manner. Again, the potential for disagreement is recognized, but the committee feels this recommendation will result in improved accessibility. As with Recommendation 6, the committee is proposing that this change become effective 6 months after the amended regulation is in force, to give organizations time to prepare and adjust.

Recommendation 7: Agreement between people with disabilities and organizations

Certain sections of the regulation require or provide for feedback processes allowing people with disabilities to make their needs and positions clear to organizations. Unfortunately, there is currently no mechanism to resolve disagreements when either party is unhappy with the result. Clearly, such a mechanism would be useful.

The committee proposes the following:

The issue of a lack of mechanism to address disagreement between organizations and people with disabilities in any section of the regulation should be referred to the Accessibility Standards Advisory Council.

Timeline: Referred to the council immediately following the submission of the final proposed recommendations. The council should develop a mechanism within one year.

The intent of this recommendation is for the council to investigate the creation of a mechanism to support the satisfaction of both people with disabilities and organizations, in relation to requirements under the act and regulation. The council is best positioned to examine this issue.

Recommendation 8: Harmonization of section 12

As was noted in recommendation 1, organizations are confused by multiple and often duplicate requirements throughout the regulation. Specifically in this case, section 12 of the Information and Communications Standards and section 80.51 of the Customer Service Standards create duplicate requirements for providing accessible formats.

The committee proposes the following:

Requirements for alternate formats and communication supports should be combined and moved to one place, in the general requirements section of the regulation. There should be no material change in the requirements, except for any other recommendations made by the committee regarding section 12. A reference to the combined section in the general requirements should be made whenever requirements for alternative formats and communication supports are mentioned in the regulation.

Timeline: Immediate

The intent of this recommendation is to clarify requirements and eliminate confusion by ensuring they are contained in one section of the regulation. The committee feels that moving the requirement for accessible formats into the general requirements section of the regulation would also make it clear that this requirement applies to all of the standards, and not just to Information and Communications. To be clear, the intent is not to weaken requirements in any way.

Recommendation 9: On-demand conversion ready formats

Currently, there is sometimes a delay when the government is asked to provide alternate formats of documents. The committee feels that technology has advanced to the point where there is no real excuse for this delay.

The committee proposes the following:

The Government of Ontario and Legislative Assembly should produce a conversion-ready digital format of all public-facing materials and provide those materials on-demand:

  • ‘on-demand’ in this case would mean immediately, meaning that it should already have been created
  • ‘conversion-ready digital format’ means a format which has the properties it needs to be readily converted into an accessible format

Timeline: January 1, 2021

The intent of this recommendation is to strengthen the idea that accessible formats should not be offered as an accommodation, to be provided only when requested and only after a delay. Accessible formats and communications supports are necessary from the start as part of an accessibility foundation. This would be a significant new requirement for government, but given current technology, it is possible.

Recommendation 10: On-demand ASL and LSQ translations

In developing recommendation 9, the committee struggled with the fact that users of American Sign Language (ASL) and Langue des signes québécoise or Langue des signes du Québec (LSQ) would not benefit from the change in recommendation 9. It was agreed that while providing all public facing materials in ASL and LSQ on-demand would simply be too burdensome, there are certain types of information and communication which should be available in these formats.

The committee proposes the following:

The Government of Ontario should convene a meeting of deaf, hard of hearing and deafblind stakeholders to determine which materials should be provided by the Government of Ontario to the public in ASL and LSQ translation. The committee recommends that following the meeting, the materials identified start to be made available on-demand.

Timeline: One year for the meeting to occur, and January 1, 2021 for the requirement to be effective.

The committee’s intent is that the Government of Ontario find a fair and reasonable answer to the question of which types of materials should be available in ASL and LSQ on demand.

Part 3: Section 13

The following recommendations relate to section 13 of the regulation, which requires organizations to provide accessible formats of publicly posted emergency plans and procedures upon request. During discussion, many committee members expressed concern with current emergency outcomes for people with disabilities, and the committee feels that improving these outcomes is absolutely critical. The committee recognizes that the scope and overall effectiveness of the requirements in Section 13 are limited, and strongly recommends that other action to improve these outcomes be taken as soon as possible.

Recommendation 11: Emergency requirements

Section 13 in the Information and Communications Standards, section 27 in the Employment Standards and Sections 37 and 56 of the Transportation Standards are all related to emergency requirements. As has been noted previously in this document, having requirements located in different places throughout the regulation is confusing for all parties. In the case of emergency requirements, that is a particularly significant problem.

The committee proposes the following:

The emergency requirements throughout the regulation should be brought together and moved into the general requirements with no material changes to what is being required.

Timeline: Immediate

The intent of this recommendation is to ensure that nothing is missed, and no requirements are overlooked when it comes to protecting the lives of people with disabilities and their families. These requirements should be consolidated and given a clear and prominent position in the general requirements of the regulation.

Recommendation 12: Unacceptable emergency outcomes and preparedness

After a significant discussion regarding emergency outcomes, the committee has concluded that the preparedness of all levels of government for emergencies involving people with disabilities is unacceptable.

The committee strongly recommends the following to help protect the lives of people with disabilities and their families:

Disability and accessibility should be front and centre in the upcoming review of the Emergency Management and Civil Protection Act. To that end, the Solicitor General, who has responsibility for emergency management, should involve people with disabilities in the review. The Solicitor General should specifically include the Accessibility Standards Advisory Council. The same process should occur when the Fire Code is next reviewed.

Timeline: Immediate

The intent of this recommendation is to address the lack of emergency planning focused on the needs of people with disabilities. It is unacceptable and must be dealt with urgently.

Part 4: Section 14

The following recommendations relate to section 14 of the regulation, which sets out the accessibility requirements for websites and web content. In both stakeholder feedback and in the committee meetings, Section 14 received the most attention and led to the most significant level of feedback and discussion. It has become clear that there is a great deal of confusion surrounding the requirements of Section 14, particularly given the rapidly changing pace of digital society.

The globally accepted standard for web accessibility is a set of standards called the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), which is published by the World Wide Web Consortium (W3C). While this standard is the one used in section 14, stakeholders and committee members agree that is not clear enough how the WCAG 2.0 guidelines should be applied to many technologies beyond websites and web content, nor is it easy to determine when the requirements of WCAG 2.0 have actually been met.

In order to help clear up this confusion and also inform its recommendations, the committee created a Digital Inclusion Technical Subcommittee. This subcommittee provided two distinct sets of expert advice to the committee:

  1. Recommendations to address confusion and gaps in section 14 (part of the phase 1 recommendations)
  2. A proposal for a new model for these standards (see phase 2)

Recommendation 13: Mobile applications and new technologies

One of the most frequently asked questions during stakeholder consultations was whether and how section 14 applied to mobile applications. The answer, for the most part, is that they do not. The current requirements apply to web-based applications only, which does not generally include mobile applications.

The committee proposes the following:

The definition of website should be aligned with the definition used by the United States Access Board, the European Union and the United Nations Convention on the Rights of Persons with Disabilities, among others, which include mobile applications, interfaces or other technologies as required. Relevant sections of these definitions have been provided in appendix C.

Timeline: By 2021, which aligns with the existing requirement for all websites to be accessible.

The intent of this recommendation is for both mobile applications which run from a website, and those which run as a standalone device but rely on the internet for function, would be subject to accessibility requirements under section 14. These requirements would apply to the government and legislative assembly, the broader public sector and large organizations. For the purposes of Section 14, small organizations are currently exempt from accessibility requirements.

Recommendation 14: Procurement

Procurement refers to the purchasing or acquiring of goods or services. The subcommittee noted that there are no accessible procurement requirements specifically related to section 14. There are procurement requirements in the general requirements section of the regulation, but the subcommittee suggested that these are not strong enough to result in accessible digital procurement.

The committee proposes the following:

The Government of Ontario and designated public sector organizations shall incorporate accessibility design, criteria and features when procuring or buying goods, services or facilities. These criteria include:

  • using qualified third-party evaluation certification services established through programs such as:
    • the United States Access Board Trusted Tester Program
    • inclusive design or accessibility certificate programs such as those offered by colleges or universities
    • professional certifications from organizations such as the International Association of Accessibility Professionals (IAAP)
    • other professional service vendors that may qualify for such activities
  • both manual and automated verification of compliance to technical web and software criteria, not just automated testing
  • functional testing of usability by persons with disabilities
  • interoperability with alternative access systems (as defined in the glossary)
  • sign language and other communication modalities
  • the requirement to procure accessible authoring and development tools

This requirement would be in addition to the general accessible procurement requirements in the regulation. The reference criteria for authoring tools would be Authoring Tool Accessibility Guidelines (ATAG) 2.0 (A and B)

Timeline: January 1, 2022. Where an obligated organization has entered into a contract before January 1, 2022, it is not required to meet the requirements of this section. The intent of the committee is not to allow grandfathering past 2023.

The committee’s intent with this recommendation is to ensure that digital procurement by the Government of Ontario and broader public sector organizations includes accessibility criteria, and that authoring and development tools that are procured are accessible.

The committee would also like non-digital procurement as required by the procurement requirement in the general requirements to be strengthened. Since this is beyond the scope of the committee’s mandate, the committee would like this work to be referred to the Accessibility Standards Advisory Council and broader government bodies that manage procurement.

Recommendation 15: Differentiating organizations/high impact organizations

The obligations of organizations under the regulation are determined by how many employees they have, as this has traditionally been a measure of how much widespread impact they have. However, the subcommittee advised the committee that as technology evolves, the number of employees is no longer necessarily a good indicator of the impact organizations may have on Ontarians. The fact is that, increasingly, organizations with very few employees are able to provide a high level or volume of services and thus should be considered “high-impact organizations.”

The committee believes that section 14, and eventually the whole regulation, need to adapt to capture these new business models.

The committee proposes the following:

  • Create a definition for ‘high-impact’ organizations. One such definition might be an organization that has one or more Ontario employees and meets either of the following criteria:
    • one million or more average annual users in Ontario (free or paid)
    • $10 million or more in yearly global revenues
  • These newly defined high-impact organizations would have to comply with the Information and Communications Standards and report under the act, and be subject to the same requirements as large organizations
  • For such businesses as described above that are under federal instead of Ontario jurisdiction, or with no employees in Ontario, the province should engage in consultation with businesses and the federal government to determine and harmonize mechanisms to regulate them

Timeline: One year with proactive outreach.

The committee’s intent with this recommendation is to ensure that all organizations with many users in Ontario, and therefore having a large impact on the province, are complying with section 14 of the regulation. This approach could be used for other requirements in the future where appropriate.

Recommendation 16: Significant refresh

Currently, the requirements of section 14 apply to organizations which either create new websites or significantly refresh existing websites. Stakeholder feedback and advice from the subcommittee suggested there is confusion about what ‘significant refresh” means, as the term is subjective. In addition, the committee learned that since Section 14 requirements apply to websites that are new or significantly refreshed, some organizations are choosing to update their websites only a bit at a time, thus avoiding the requirements. This may actually result in reduced accessibility for users.

The committee proposes the following:

  • Any content that is new or which an obligated organization changes, updates or adds to a website must meet the accessibility requirements of section 14
  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that section 14 include examples for the sake of clarity

Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.

The intent of this recommendation is to bring the section 14 requirement closer to its intended function, which is to ensure that over time, organizations develop greater accessible content for users with disabilities.

Recommendation 17: Practicability

Section 14 contains an exemption for obligated organizations which gives them the ability to claim that making a website accessible is ‘not practicable’. The committee feels that this term is too vague and might allow some organizations to avoid doing something they are actually able to do.

The committee proposes the following:

Clearly define the term “not practicable,” bringing it in line with the term “undue hardship,” as set out by the Ontario Human Rights Code. A link to this terminology has been provided in appendix C.

Timeline: Immediate

The intent of this recommendation is to reduce how easy it is for obligated organizations to use vague wording in the standards as an excuse to not fulfil their requirements. Aligning the language with that of the Ontario Human Rights Commission would bring significant clarity, as both the commission and the Human Rights Tribunal of Ontario have previously ruled on what undue hardship actually is.

Recommendation 18: Harmonization and application across requirements

Section 14 is intended to bring about greater accessibility in websites. The committee noted, however, that websites are mentioned in different sections of the regulation, but only in section 14 are the accessibility requirements explained. In the view of the committee, this makes it too easy for stakeholders to overlook or miss the requirements.

The committee proposes the following:

It should be made clear that section 14 applies to all sections of the regulation. This could be communicated as a reference to section 14 wherever websites are directly referenced in the regulation.

Timeline: Immediate

The committee’s intent with this recommendation is to make sure obligated organizations follow website accessibility requirements by reducing any confusion about what they are obligated to do.

Part 4, subpart 1: Section 14 exemptions

Section 14 identifies a number of situations in which websites or web content do not need to comply with accessibility requirements. The committee does not believe that these exemptions are functioning as intended and recommends changes to these exemptions.

Recommendation 19: Extranet exemption

Section 14 covers internet, intranet and extranet websites, and in the process it defines what these are. Intranet websites are websites that can be accessed from within a particular organization’s network. Currently, not all organizations are required to make these sites accessible. Moving on to extranet websites, section 14 defines these as websites which require a login. It considers these as an extension of intranets, and therefore also exempt for most organizations. The problem is that a great number of other internet websites that happen to require logins are therefore also considered extranets and so are exempt, which is certainly not desirable.

The committee proposes the following:

The exemption for public-facing websites with a log-in (previously referred to as extranets) should be removed and these types of websites should be required to comply with the regulation.

Timeframe: New public-facing websites with a log-in must comply by January 1, 2022, and all public-facing websites with a log-in must comply by January 1, 2023.

The intent of this recommendation is to completely remove the exemption for extranet websites, ensuring not only that these be required to comply with section 14, but also that other internet websites not be able to avoid the requirement simply because they use logins. The committee recommends a longer timeframe for implementation as this would be a new requirement.

Recommendation 20: Intranet exemption

Further to recommendation 19, the committee believes that technology has advanced to the point where all organizations should be able to make their websites accessible under section 14. Thus far, only the Government of Ontario and Legislative Assembly are required to do so. The subcommittee and committee do not believe there would be a major issue with extending this requirement to the broader public sector and large organizations.

The committee proposes the following:

The exemption for employee-facing websites and content (previously referred to as intranets) should be removed and, like all other websites, these types of websites should be required to comply with the regulation.

Timeline: New employee-facing websites must comply by January 1, 2022, and all employee-facing websites must comply by January 1, 2023.

For clarity, the committee recommends that all definitions related to a type of website be removed and that section 14 simply apply to all websites, internet or intranet for all obligated organizations. Because this would be a new requirement, the lengthy timeline above is recommended.

Recommendation 21: Pre-2012 exemption

Section 14 provides an exemption from having to make web content accessible if that content was first published on a website before 2012. The committee discussed that this exemption has created two problems. First, some organizations are using this exemption as a loophole that enables them to continue using some content from pre-2012 websites on new websites. The second problem is that organizations are taking useful pre-2012 content, such as historical records, off their websites when they move to a new or refreshed website because they do not have the resources to make this content accessible.

The committee proposes the following:

A category should be created for older archived content. A potential model for this would be the federal Treasury Board Secretariat of Canada archived content policy. This would grant an exemption only to non-active documents. Active content, which is anything that requires input or, like forms, can be changed, will not be covered under this exemption. Pre-2012 images used for navigation in refreshed websites must be made accessible.

Timeframe: Immediate

The intent of this recommendation is to ensure that no content which is intended for active use can be exempt, and that inactive, archived content which is for informational purposes only can remain exempt.

Recommendation 22: Live captioning and audio description

Currently, the Government of Ontario and Legislative Assembly are the only organizations which must meet the live captioning and audio description requirements in the Web Content Accessibility Guidelines (WCAG) 2.0. All other organizations are exempt from implementing this requirement.

The committee proposes the following:

  • By January 1, 2022, the exemptions to the WCAG 2.0 Level AA guidelines regarding live captioning and audio descriptions should be removed.
  • Between now and January 1, 2022, obligated organizations should put in place the infrastructure to support live captioning and audio description. Organizations which are currently exempt and are required to prepare a multi-year plan should include progress toward this infrastructure in their plan.

Timeline: Exemptions removed by January 1, 2022, to be evaluated for acceleration by the next committee.

The intent of this recommendation is to have obligated organizations plan infrastructure, adopt training, and generally get ready to implement live captioning and audio descriptions by 2022, or sooner if the next committee should choose to accelerate the timeline. The committee’s intention is to establish a high standard (equal to CRTC standards for live captioning) of quality in live captions.

Recommendation 23: Web hosting location

Section 14 only applies to content which organizations control either directly or through a contractual relationship that allows for modification of the product. The committee has learned that some organizations are interpreting this to mean that if their websites are hosted on servers outside the province, they may claim exemption from the section 14 requirements.

The committee proposes the following:

Section 14 should apply to obligated organizations no matter where their web servers are located.

Timeline: One year

The intent of this recommendation is to clarify that the regulations apply to obligated organizations regardless of where their websites might be hosted.

Recommendation 24: New and emerging technologies

New and emerging technologies present the risk of discriminating against persons with disabilities. As well, people with disabilities are more vulnerable to abuses of new technology and existing and emerging privacy protections do not work for them. These issues include:

  • data gaps: people with disabilities are not reflected in existing data.
  • algorithmic bias: data analytics reflect human bias.

Even if and when these risks are ameliorated, these technologies (for example, artificial intelligence) make decisions and take actions based on an average or majority. People with disabilities are very different from each other and often represent a minority of 1. People with disabilities are harmed by data in both directions. The risks are dismissed because they only affect a small number. The benefits are not pursued because they only benefit a small number.

Note: Additional resources available in appendix C.

The committee proposes the following:

When decisions are being based on data analytics using population data, there should be a disability impact assessment.

Government should immediately create a task force to work with the government on the design and testing of its digital services and to investigate risks, risk mitigation and opportunities in the context of the disability ecosystem. The task force should include experts in disability use case, emerging technologies and data analytics, the majority of whom are people with disabilities from a wide functional cross-section. This task force shall act as an ongoing bridge to phase 2.

Recommendation 25: Web Content Accessibility Guidelines (WCAG) Version

The version of the Web Content Accessibility Guidelines referred to in section 14 of the regulation is out of date.

The committee proposes the following:

When the requirement to comply with WCAG 2.0 AA in section 14 is fully implemented (January 1, 2021), Government should update the requirement to the most recently published version of WCAG (for example, WCAG 2.1) within 1 additional year.

Part 5: Sections 15, 16, 17 and 18

The following recommendations relate to Sections 15, 16, 17 and 18, which cover educational and training facilities, producers of educational and training materials, and libraries of educational and training institutions.

One of the topics that was brought to the committee’s attention was the difficulty that education providers and students frequently have obtaining accessible resources. The committee has heard that these resources are too often unsatisfactory or delayed provision of these resources is resulting in poor learning outcomes for students with disabilities. Based on these observations, the committee recommends the following:

Recommendation 26: Purchase of accessible teaching/training materials

During its education and training discussions, the committee noted that the procurement of course materials is a good time to ensure that accessible versions are available.

The committee proposes the following:

It is recommended that obligated organizations that are educational or training institutions be required to order text books or other curricula materials, printed or digital, from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print or digital materials. For clarity sake, digital includes but is not limited to static, dynamic and interactive content.

These materials should meet or exceed the obligations of education providers as described in the Ontario Human Rights Commission’s “Policy on accessible education for students with disabilities”.

Timeline: Immediate

Recommendation 27: Definition of educational and training institutions

Education and training accessibility requirements in the regulation only apply to organizations that are classified as educational or training institutions, even though many organizations which do not meet that classification provide these services.

The committee proposes the following:

That the government consider including all organizations (public or private) that provide formal education and training in the requirements.

The committee has asked the public what types of organizations should fall under the definition of formal, and provides this information to the government with this report in appendix C.

Timeline: Immediate

Recommendation 28: Increasing captionist capacity

Committee members are concerned that there are too few trained captionists in the province. While training for captionists does exist in Ontario, the committee believes there is not enough supply to meet the potential demand.

The committee proposes the following:

The Government of Ontario should explore, in partnership with post-secondary institutions, employers and apprenticeship bodies, establishing a post-secondary course to train captionists, possibly in partnership with a court stenographer’s course.

Timeline: Immediate

Recommendation 29: Accessibility in education

The committee believes that the inclusion of accessibility-related content in all levels of education curricula is one of the best ways to influence cultural change.

The committee proposes the following:

The government should explore ways to make education and skills development about accessibility, including e-accessibility, part of early years, elementary, secondary and post-secondary curricula.

Timeline: Immediate

The intent of this recommendation is to increase the amount of accessibility-related content in all levels of education in Ontario.

Recommendation 30: Accessibility in information and communication tools and systems

Some members of the committee have noted that there is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communication tools and systems, and this leads to a lack of accessibility in these products.

The committee proposes the following:

All obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of all people with disabilities, including deaf, deafblind and hard of hearing people who use ASL and LSQ.

Timeline: One calendar year from effective date.

The intent of this recommendation is to ensure that information and communication tools and systems are created with accessibility features built-in and are maintained by individuals who are familiar with accessibility features.

Recommendation 31: Accessibility in provincially regulated professions

The question of accessibility in provincially regulated professions was of significant interest to the committee. Provincially regulated professions provide a wide array of services to Ontarians, and ensuring they understand the needs of people with disabilities would help make these services more accessible. The committee believes that education around accessibility in all provincially regulated professions could greatly enhance awareness and further prevent attitudinal barriers.

Note: As a resource, the committee refers to the Ontario Human Rights Code “Policy on ableism and discrimination based on disability.

The committee proposes the following:

Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers. These should be worked into instructional planning and course design for organizations which provide education or training.

Timeline: One calendar year

The intent of this recommendation is to integrate accessibility into the education and certification of regulated professionals in Ontario.

Recommendation 32: Education standards

The Information and Communications Standards of the regulation currently contain requirements related to education and training. When the committee first reviewed Sections 15–18 and proposed recommendations 24–29, the Government of Ontario had created committees to propose new standards in the regulation for education.

The committee proposes the following:

If the government creates education standards with requirements that are equal to or greater than those requirements found in Sections 15–18 of the regulation, including the result of recommendations 24–29 made in this report, these sections can be moved to the Education Standards.

If any elements of Sections 15–18, including the result of recommendations 24–29 made in this report, are not reflected in newly created education standards (or within the jurisdiction of education standards development committees) for example application of standards to private schools and colleges—these requirements must be retained in the Information and Communications Standards.

The committee’s intent is to make recommendations 24–29 related to Sections 15–18, while allowing the government to house these requirements in the most logical place in the regulation.

Part 6: Section 19

Section 19 relates to public libraries. The committee has reviewed and consulted on this section and voted to confirm that it recommends no changes to this section.

Phase 2

Declaring a breakdown – a call for a new way forward

During their deliberations and interactions with constituents, it became clear to the members of the committee that the current approach to regulating the accessibility of information and communication in Ontario is flawed, and if the approach does not change, the policy aims of the regulations will not be fully achieved. There was consensus that reliance on a wholly prescriptive standard that is not responsive to changes in technology and its application is a fundamental shortcoming of the current approach. There is also a need to enhance the active participation of those who build and use technology daily both to understand and to mandate the application of technologies in ways that maximize economic and social participation for Ontarians with disabilities.

A new model for accessibility regulation

As mentioned at the beginning of this report, the Digital Inclusion Technical Subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system is really able to deliver the desired outcomes.

In the process of considering the broader questions, the subcommittee had thorough discussions which formed the basis of a broad new proposal, presented here in this second chapter of the report, to improve access for Ontarians with disabilities: The Accessibility Ecosystem model.

The Accessibility Ecosystem model responds to what the subcommittee perceives as weaknesses in the current regulatory model and introduces a response that is better suited to a world of rapidly changing technology and business models. The committee also recognizes the need for a more responsive model that is focused on equipping obligated organizations with the knowledge and tools to best serve Ontarians on the front lines of business and government service delivery.

Government’s broader use of the Accessibility Ecosystem model

Though the application of the Accessibility Ecosystem is proposed first for digital content and its applications, this model may prove to be more broadly applicable to other standards.

The Accessibility Ecosystem is presented at a very high level, both to maximize compatibility with various requirements and in recognition that more in-depth research and development needs to be done by government and relevant stakeholders to take this model to the next step.

The committee proposes:

  • That the government adopt and operationalize phase 2 as the regulatory approach to accessibility in Ontario. The committee is aware that this approach will continue to evolve. The intent of the committee is to have phase 1 implemented in parallel with phase 2. Phase 1 should occur during the transition to phase 2.
  • Note: The infographics and additional materials (for example, long descriptions) have been submitted alongside this report after the appendices.

Timeline: Two years from submission of the final recommendations for phase 2 to be fully implemented.

What this document contains:

Current context:

  • committee investigates what the current regulatory model seems to be missing.

Accessibility Ecosystem:

  • the Accessibility Ecosystem model is proposed as a solution, and its advantages are listed.

Laws, Trusted Authority, Community Platform and Compliance

The Accessibility Ecosystem, listed and explained:

  • How is the new model better?
  • A look at what sets the Accessibility Ecosystem apart.
  • Cost, funding and sustainability
  • An explanation of how, far from being an onerous cost, the new model is actually a shrewd investment.

Current context

The subcommittee’s starting point was an acknowledgement of the fact that our understanding of accessibility has evolved since the act was drafted and implemented. People with disabilities are as diverse in their needs and perceptions as people without disabilities, and perhaps even more so. For that reason, one-size-fits-all approaches to accessibility often don’t work. In addition, it is now understood that even the word ‘accessible’ does not have a single definition and is more related to technical requirements than a person’s demand for a great experience. What is meant by accessible depends on the person and his or her goals and context. What this means is that accessibility can only be achieved through a process of inclusive design – one that recognizes that all people are variable and diverse, and our products and services must make room for a wide range of human differences.

It is also critical to understand that even if all the specified goals of the act were to be achieved by 2025, it would not be a case of mission accomplished. There would still be people with disabilities for whom Ontario is not accessible. Our society is changing all the time. New barriers to accessibility are constantly emerging, as are new opportunities for greater accessibility. The subcommittee concluded that creating an accessibility check list, however comprehensive, to address the needs of all Ontarians with disabilities is an impossible task. People not represented in the deliberations would likely be left out, unanticipated new barriers would not be considered, and new technologies that might be used to address barriers would not be leveraged. At that point, the subcommittee decided it was time to take a critical look at the current act and regulation model. What it found was five areas in which the current model is simply not meeting the needs of Ontarians with disabilities:

Participation

In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.

The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • students, many of whom participate in projects such as “mapathons,” design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • persons with disabilities and their families or support communities
  • professional organizations
  • community volunteers
  • civil society

The efforts made by these people, groups and organizations are significant, but there is currently no real way to collect, harness and showcase their contributions or quantify their economic impact.

Updating

Other than the five-year review, there is currently no mechanism for keeping the standards up to date. This is especially problematic when it comes to information technology systems and practices, which are changing at an accelerating rate and affecting more and more essential aspects of our lives. Barriers to accessibility emerge suddenly, and if they are not dealt with immediately they can spread and multiply. Opportunities for greater accessibility appear, but if they are not quickly seized they can disappear. In this fast-moving world, accessibility standards quickly fall out of date, and the system is not equipped to deal with that.

Integrating innovation

Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.

Review and feedback

Legislation often triggers new demands for services. The act has prompted the growth of the accessibility services sector in Ontario. Training, evaluation, design, development and remediation services are now effectively growth industries in Ontario. However, these businesses and services range in expertise and quality, and there is currently no mechanism for reviewing or providing feedback about them.

Indicators

There is currently no way of tracking progress toward accessibility goals. No progress indicators have been established, making it extremely difficult to determine how well accessibility standards are working.

Based on all of this, the subcommittee concluded that an entirely new approach needs to be taken. This approach must move from presenting accessibility as an obligation to be borne by a specific group of organizations in Ontario, to a process that all Ontarians participate in, and benefit from. This is what the committee means when it refers to a culture change, and the vehicle for that culture change is the proposed new “Accessibility Ecosystem.”

The Accessibility Ecosystem

Fundamentally, the Accessibility Ecosystem is a new way of organizing the standards within the regulation. Initially, it is being proposed for the Information and Communication Standards, though the committee believes that it could one day be the framework for the full set of regulation standards. The primary aim of the Accessibility Ecosystem is to encourage organizations to see the act less as an obligation than as something in which they participate for their own benefit, and the benefit of all Ontarians. For that reason, the first step in implementing this new system, however symbolic, would be to rename “obligated organizations” as “participating organizations.” This reframing will also provide a way to keep improving and updating how we address barriers faced by persons with disabilities in Ontario, up to and beyond 2025.

The objectives of the Accessibility Ecosystem are as follows:

  • keep up with changes in technology
  • respond to new barriers
  • respond to new opportunities
  • respond to barriers not anticipated when the standards were written
  • encourage and support organizations and the larger community in finding innovative ways to address barriers
  • discourage the ‘us-them’ attitude towards accessibility, where the interests of persons with disabilities are seen as counter to the interests of businesses
  • encourage working together to make things more accessible to the benefit of everyone
  • communicate that accessibility is a responsibility we all share
  • show how accessibility and inclusive design are a good way to do business, and a good way to grow the economy and economic participation for Ontarians with disabilities
  • reduce confusion about the regulations and make it easier to find tools and resources needed to comply with them
  • provide clear, up-to-date, specific advice regarding how requirements can be met
  • create the conditions and supports so that all Ontarians feel that they can participate in removing barriers

The proposed ecosystem has three interdependent parts. They support one another, and all play a role in telling organizations what they need to do to remove barriers and expand opportunities. The ecosystem as a whole provides the balance between legal compulsion and alignment with current technical practices. All three parts require funding and ongoing support. The three parts are the laws, the Trusted Authority and the Community Platform.

The laws

This is the least flexible part. The laws would establish requirements, but not specify how they must be met. The Laws include three types:

  • Functional Accessibility Requirements (FARd) (contained in appendix B of this report). These are requirements that are constant. They do not mention specific technologies, to avoid a situation in which a technology changes and evolves to the point where the requirement no longer makes sense. If organizations need help understanding how to meet the requirements, they are linked to acceptable methods of doing so by the Trusted Authority. These requirements are modeled on and harmonized with requirements adopted by both the European Union and relevant US accessibility laws. The functional requirements do not replace technical requirements but specify what they are trying to achieve.
  • Regulations regarding the policies of the ecosystem. These govern the Trusted Authority, the Community Platform and updates to the laws.
  • Regulations that support system-wide long-term changes and improvements in the accessibility of Ontario. These include:
    • integrating education about accessibility in all education, starting as early as Kindergarten – Grade 12
    • integrating accessibility into professional training for all professions that have an impact on products and services
    • requiring accessibility when purchasing products and services, especially when spending public funds
    • including people with disabilities in decision making and planning processes, and ensuring that mechanisms for participation are accessible

Trusted Authority

The Trusted Authority would be an independent group that provides ongoing oversight and support to the system of accessibility standards, in order to ensure that the system is performing as it should and accomplishing what it is intended to accomplish. The Trusted Authority would include people with a wide range of expertise, including lived experience with disabilities.

As implied by the name, the Trusted Authority must be credible, understandable and reliable. All its activities must be transparent and open to public scrutiny. The Trusted Authority would have the power to consult with any individual or group to address knowledge and skill gaps.

The Trusted Authority would:

  • Determine and provide clear up-to-date qualifying methods for meeting regulations. (The current set of qualifying methods includes the Web Content Accessibility Guidelines 2.0, the Authoring Tool Accessibility Guidelines 2.0 and other standards such as Electronic Publication (EPub) and International Organization for Standardization (ISO) 24751).
  • In addition to qualifying methods, ensure that necessary tools and resources are available to use the qualifying methods.
  • Provide guidance regarding how to achieve the functional accessibility requirements, specific to the particular organizations. This includes links to resources and tools in the Community Platform.
  • Retire qualifying methods that are out of date.
  • Clarify laws when there is uncertainty or when there are changes.
  • Review new and innovative methods proposed by organizations and individuals to determine whether they can be used to meet the requirements.
  • Address gaps in available qualifying methods to meet the requirements.
  • Ensure that the barriers experienced by all Ontarians with disabilities are addressed by regularly evaluating who might be falling through the cracks. This includes individuals with a range of technical literacy, individuals in urban, rural and remote communities, Ontarians at all income levels and individuals with disabilities that are not visible or episodic disabilities. It also includes people who experience other barriers that might worsen the barriers experienced due to disabilities.
  • Provide, track and make publicly available indicators of progress toward an accessible Ontario. Examples of those indicators might include the number of companies with an accessibility officer, the number of accessibility complaints received and their resolution, the number of employees who self-identify as having a disability, and the number of Ontarians trained in accessibility skills.
  • Prioritize accessibility processes and tools rather than specialized technologies and services for people with disabilities. In this way, people with disabilities do not have to bear the additional cost of buying their own specific technology.
  • Support innovation that recognizes the diversity of needs experienced by people with disabilities rather than a “winner takes all” or a “one winning design” approach.
  • Support recognition that people with disab