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




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


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


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


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


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


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


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


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


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


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


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


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


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


For more background

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


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


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


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


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