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:

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.
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.
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.
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.
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
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.
Ontario’s critical care triage plan risks unfairly and arbitrarily providing different amounts of oversight of triage decisions from hospital to hospital.
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.
A substantially incorrect idea of “equity” was presented to frontline doctors being trained to make critical care triage decisions.
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.
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.
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:

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.

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.

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.

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.

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:

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;

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

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.