Ford Government Says it Rescinded its Widely-Condemned March 28, 2020 Protocol Directing Which Patients Will be Refused Life-Saving Critical Medical Care if the COVID-19 Surge Exceeds Hospital Capacity – But Won’t Now Reveal How It Will Fill that Vacuum

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Ford Government Says it Rescinded its Widely-Condemned March 28, 2020 Protocol Directing Which Patients Will be Refused Life-Saving Critical Medical Care if the COVID-19 Surge Exceeds Hospital Capacity – But Won’t Now Reveal How It Will Fill that Vacuum

November 9, 2020 Toronto: The Ford Government announced in the Legislature last week that it cancelled its widely-condemned March 28, 2020 protocol, directing which patients would be refused life-saving critical medical care if a COVID surge overloads hospitals, requiring critical care rationing. Advocates for 2.6 million Ontarians with disabilities blasted that protocol for months, as discriminating against some patients with disabilities.

”It’s great that when pressed in Question Period, the Ford Government finally announced it had rescinded its deeply flawed March 28, 2020 critical care triage protocol, but we’ve seen no proof that they’ve told all Ontario hospitals this,” said David Lepofsky, chair of the non-partisan AODA Alliance that allied with other disability advocates to protect patients with disabilities against such discrimination. “We’ve written Health Minister Christine Elliott and filed a Freedom of Information application to find out what directions have actually been sent to the health care system front lines.”

Despite this positive news, the Ford Government’s November 5, 2020 statement in Question Period (set out below) leaves a troubling vacuum in hospitals, with no directions on how to make critical care triage decisions if rationing becomes necessary. The unstopped acceleration of new daily COVID infections brings Ontario much closer to a time requiring such terrifying triage.

The Ford Government is still keeping secret the recommendations it received two months ago from the Government-appointed Bioethics Table, on the rules that should replace the March 28, 2020 triage protocol that the Government says it rescinded. The Government has been pressed to reveal the Bioethics Table’s recommendations by the Opposition, the Ontario Human Rights Commission, disability organizations including the AODA Alliance and the Bioethics Table itself.

On November 5, the Government said in the Legislature it “may” reveal a new framework for deciding which patients would be refused life-saving critical care “should pandemic conditions deteriorate significantly in the province.”

“Ontarians have the right to know now what triage rules the Ford Government is considering imposing if it becomes necessary to ration critical medical care,’ said Lepofsky. “We need a fair chance to give our input before that framework is finalized and adopted, but it will be too late if our hospitals are already overloaded and having to make triage decisions before Ford lifts its unjustified veil of secrecy.”

On November 5, the Ford Government told the Legislature it didn’t think Ontario would ever have to ration critical medical care. However its own Bioethics Table had emphasized the importance of being prepared well in advance for such an eventuality.

“Premier Ford should keep his promises to protect the most vulnerable in this pandemic, and to be open and transparent about what his Government is doing. His obsession with secrecy surrounding the life-and-death issue of medical triage is simply inexcusable,” said Lepofsky

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

Below please find:

  1. The November 5, 2020 exchange in Question Period on the critical care triage issue.
  2. The AODA Alliance’s November 9, 2020 letter to Ontario Health Minister Christine Elliott

For more background on this issue, check out:

  1. The AODA Alliance’s unanswered September 25, 2020 letter and its November 2, 2020 letter to Health Minister Christine Elliott
  1. The August 30, 2020 AODA Alliance final written submission to the Ford Government’s Bioethics Table
  1. The April 8, 2020 open letter to the Ford Government on the medical triage protocol spearheaded by the ARCH Disability Law Centre, of which the AODA Alliance is one of many co-signatories
  1. The April 14, 2020 AODA Alliance 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
  1. The July 16, 2020 AODA Alliance Update that lists additional concerns with the revised draft triage protocol. That Update also sets out the Ford Government Bioethics Table’s revised draft triage protocol itself.
  1. The AODA Alliance website’s health care page, detailing our 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.

Ontario Hansard November 5, 2020

Question Period

COVID-19 RESPONSE

Mme France Gélinas: Ma question est pour la ministre de la Santé. With COVID-19 numbers on the rise Ontario must have a plan in case there are more critically ill patients than our hospitals can serve. On March 28 the government sent a widely condemned critical care triage protocol to Ontario hospitals. The Ontario Human Rights Commission, many disability organizations and even the government’s own bioethics table have called on the government to cancel that protocol.

The critical care triage protocol has been criticized for allowing discrimination against people with disabilities who would find themselves in need of life-saving medical care. With a dozen major intensive care units now operating at capacity, this can become a life-or-death issue for people with disabilities in a not-too-distant future. In line with the unanimous advice of her own bioethics table, the human rights commission and the AODA Alliance, will the minister cancel her discriminatory March 28 critical care triage protocol?

The Speaker (Hon. Ted Arnott): Minister of Long-Term Care.

Hon. Merrilee Fullerton: Thank you very much for raising that, because that really deserves clarification. I can tell you that I had nothing to do with any kind of triage protocols such as this. It would have been done by health experts, not by me. I’m aware of something that did exist in draft form. It never saw the light of day in terms of coming to reality. Quite frankly, I find the whole approach extremely offensive. Ageism is illegal. If anyone in our long-term-care homes needs medical care they will receive it, and that’s exactly what is happening. I reject any premise that anyone is acting on any draft of any nature such as this.

The Speaker (Hon. Ted Arnott): The supplementary question.

Mme France Gélinas: Two months ago the government’s bioethics table gave recommendations to the Minister of Health on the rules that should govern critical care triage to replace the March 28 critical care triage protocol that has been sent to every Ontario hospital already. Despite the Premier’s promise of full transparency in the handling of this pandemic, the government has kept the critical care triage protocol kind of a secret—the minister doesn’t know about it. Ontarians, people with disabilities: We all deserve to know what directive the government is considering in this life-and-death decision-making process. The minister’s own bioethics table, the Ontario Human Rights Commission and major respected disability organizations are urging the Minister of Health to immediately release the bioethics table’s recommendations presently being considered.

Will the minister immediately make public the recommendations of the government’s bioethics table on critical care triage, and will she consult with people with disabilities on the rules that should govern critical care triage?

The Speaker (Hon. Ted Arnott): Response? The parliamentary assistant.

Mrs. Robin Martin: Thank you to the member opposite for the question. Obviously, the health and well-being of all Ontarians is our top priority. The March 28 draft critical triage protocol for a major surge in the COVID-19 pandemic was developed by a bioethics table, but has been rescinded and should not be implemented or relied on. This early draft and any subsequent draft documents developed for engagement and consultation should not be used. A revised framework may be shared in the future and distributed, should pandemic conditions deteriorate significantly in the province.

Our government has also introduced our comprehensive $2.8-billion Keeping Ontarians Safe plan, which will ensure that the province is ready to respond to several situations for COVID-19. Implementation of our plan is well underway. We don’t anticipate getting anywhere near having to use such a protocol—

The Speaker (Hon. Ted Arnott): Thank you very much. Next question.

November 9, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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

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

November 9, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: Christine.elliott@ontario.ca

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

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

We again write on a life and death issue during the COVID-19 pandemic. We and other disability advocates have been trying to protect patients with disabilities from suffering disability discrimination in access to critical medical care, if the COVID-19 pandemic surge overloads our hospitals and requires rationing or “triage” of critical medical care in Ontario hospitals.

1. Cancelling or “Rescinding” the Seriously Flawed march 28, 2020 Critical Medical Care Triage Protocol that the Government Earlier Sent to All Ontario Hospitals

We were relieved to hear your parliamentary assistant, Robin Martin, state in the Legislature on November 5, 2020 that the Government had rescinded the widely-criticized March 28, 2020 critical medical care triage protocol, a protocol that the Government had sent to all Ontario hospitals last spring. We gather she spoke in Question Period on your behalf and in your absence. She stated:

“The March 28 draft critical triage protocol for a major surge in the COVID-19 pandemic was developed by a bioethics table, but has been rescinded and should not be implemented or relied on. This early draft and any subsequent draft documents developed for engagement and consultation should not be used.”

For the Government to rescind that March 28, 2020 critical medical care triage protocol is very important. That protocol enshrines discrimination against some patients with disabilities. The Government has never made it public and did not consult the public, including people with disabilities, before sending it last spring to all Ontario hospitals. Many, including the AODA Alliance, have called for months for the Government to rescind it.

2. Need for Effective Government Action to Ensure that the March 28, 2020 Critical Care Protocol is Fully Withdrawn and Cancelled

However, MPP Robin Martin’s helpful November 5 statement in the Legislature does not itself ensure that the March 28, 2020 protocol is in fact rooted out of our health care system. That harmful protocol has been thoroughly embedded in Ontario hospitals for up to eight months. If the Government wishes it rescinded, the Government must make that loud and clear. It must publicly communicate that direction to all hospital senior management, and to all intensive care and emergency room staff. So far, we have seen no indication that it has been communicated to anyone, beyond MPP Robin Martin’s answer to an opposition question in the Legislature on November 5, 2020.

We only learned about this important news because the Opposition NDP helpfully happened to ask about it in the Legislature last week. Had that Opposition question not been asked, we have no indication that this information would have been made public.

The Government has consistently remained silent on this important issue, despite several important opportunities to advise that the March 28, 2020 triage protocol had been rescinded. For example, the Government did not state that it had rescinded or was rescinding the March 28, 2020 critical medical care triage protocol when the Ontario Human Rights Commission called for its rescission last spring, or more recently, in the Commission’s October 16, 2020 letter to you. Similarly, your Government did not announce that the triage protocol was rescinded in response to the ARCH Disability Law Centre’s April 8, 2020 news release or our news releases on April 14, April 21, August 31, or November 2, 2020, news releases or in response to our as-yet unanswered September 25 or November 2, 2020 letters to you, seeking its rescission. The Government similarly did not publicly announce the March 28, 2020 triage protocol’s rescission in response to the advice of the Government-appointed Bioethics Table, which delivered its report to the Government two months ago, including advice calling for that protocol to be withdrawn.

As well, your Government did not announce that the March 28, 2020 triage protocol was rescinded in response to the opposition NDP’s written questions on this topic filed with the Legislature back on September 30, 2020. Your Government has 24 legislative sitting days to answer those questions.

Likewise, in the Government’s responses to media inquiries about the triage issue by the Toronto Star and Radio Canada last month, there is no indication that the Government told the media that the controversial March 28, 2020 triage protocol had been or was being rescinded. That would have been very newsworthy information.

It is important that all senior hospital administrators and front-line health care providers in hospitals and other key positions know now with utter certainty and clarity that the March 28, 2020 triage protocol is never to be used under any circumstances. We are eager to do what we can to help ensure that everyone knows it is not to be followed.

Your Parliamentary Assistant Robin Martin spoke in such clear and categorical terms in the Legislature, when she said that the March 28, 2020 protocol has been rescinded. We hope and trust that this means that the Government has issued a clear and strong written direction to all Ontario hospitals. Could you please let us know what steps your Government has taken or is taking now to ensure that the widely-condemned March 28, 2020 critical medical care triage protocol is cancelled and is never to be used? Could you please send us and make public a copy of the direction that the Government sent to all hospitals to this effect and let us know what communication plan is in effect to ensure that this message reaches all who need to receive it within the health care system?

3. What Will Fill the Vacuum?

If the Government has rescinded the March 28, 2020 critical care triage protocol, what will the Government have in place in our hospitals to fill the vacuum and to replace it? The Government commendably realized last winter, as the COVID-19 pandemic was just spreading to Canada, that it was essential to get ahead of the game, and to have in place a critical care triage protocol in case a future surge of COVID-19 cases makes it necessary for critical care beds and services to be rationed or triaged. The pressing need for such a protocol has been demonstrated by other jurisdictions such as Italy, which experienced such a surge without being prepared.

Last summer, members of the Government’s Bioethics Table confirmed such a pressing need during their extensive discussions with a group of disability advocates and experts, in which I was included. They were rushing to get their recommendations to you before schools re-opened, knowing that a COVID-19 surge was anticipated this fall.

Moreover, during our discussions with them last fall, members of the Bioethics Table explained to us the need for a revised triage protocol to be issued well in advance, so that hospital officials and front-line health care providers could be fully trained on what it requires and how to abide by it. This is not a simple topic. Moreover, should it become necessary to use it, hospitals will be in the midst of a health care crisis, juggling more critical care patients in a life-or-death situation than the exhausted, highly-stressed hospital staff has time or space to serve.

All of this points to the pressing need for your Government to immediately take these steps:

  1. Now make public the recommendations the Government received two months ago from the Bioethics Table on what a new critical care triage protocol should include;
  1. Quickly conduct a full and inclusive consultation with the public (including with people with disabilities) on those recommendations;
  1. Enact needed legislation needed if a critical care triage protocol is to be lawfully and constitutionally implemented.
  1. Issue a new critical care triage protocol that is fully lawful and that fulfils constitutional and human rights requirements, and that has been screened for such by Government lawyers;
  1. Effectively communicate that new protocol to senior hospital administrators, front-line health care providers and others that need to implement it, and effectively train them on how to use it, and
  1. Put in place the new due process legal requirements for patients such as appeal procedures and Legal Aid supports that patients desperately deserve and need in such triage situations.

All six steps must be completed well before a COVID-19 surge takes place that necessitates critical care triage. By the time triage becomes necessary, or gets close, it will be too late to take all six steps to ensure that the triage protocol is appropriate, legal and constitutional. As we write you, the predicted second wave of COVID-19 cases is well underway. It has not plateaued. Accelerating daily new infection numbers are much higher than they were earlier this year when your Government saw the need to develop a clinical care triage protocol. Colder winter weather has not yet arrived. Experts predict that COVID-19 spread will worsen in colder weather.

From the answers your Parliamentary Assistant gave in Question Period in the Legislature on November 5, 2020, it appears that there is now a vacuum with nothing in place. We are deeply concerned that your government has not now publicly committed to taking all the steps needed to fill that vacuum in a timely way. In the absence of a new critical care triage protocol, Ontarians are left with the real risk that life-and-death decisions could be made in emergency rooms based on each doctor’s idiosyncratic preferences or personal choices on who should get critical care and who should not, should the COVID-19 surge require rationing of critical care. That exposes patients with disabilities once again to the risk of discrimination because of their disabilities.

Your Government has still not agreed to make public the bioethics Table’s recommendations for a new critical care triage protocol. Your Government has only said that it “may” make public a new framework for critical care triage, clearly implying that it may not do so. We should note that your Government has never made public its seriously-flawed March 28, 2020 critical care triage protocol. That protocol only came to light when it was leaked to some in the disability community last spring.

Making this worse, your Government is only planning to possibly make a new critical care triage framework public if the COVID-19 situation gets much worse. By then, as noted above, it will be too late to take all the essential and important steps we listed above.

It is also worrisome that your Government appears to be in denial, claiming that it is not likely that we will reach the stage of needing to undertake critical care triage. We all hope that critical care triage never becomes necessary. However, planning now for critical care triage is extremely important, even if it is thought that critical care triage will not likely ever occur. We need to be ready “just in case”. That is the essence of good emergency planning, especially on a life-and-death issue.

Let us show you how Ms. Martin’s answers in the Legislature paint this disturbing picture. The opposition commendably asked the Government to make public the recommendations it received two months ago from the Government-appointed Bioethics Table. MPP Robin Martin, answering on your behalf, did not agree to do so. She did not even specifically respond to that clear request. As noted above, at most, Ms. Martin said the Government “may” make public a revised framework (i.e. protocol or direction to hospitals), if Ontario’s pandemic conditions “deteriorate significantly”. She said the following in material part:

“A revised framework may be shared in the future and distributed, should pandemic conditions deteriorate significantly in the province.”

MPP Robin Martin also said that the Government does not expect getting near a situation where a triage protocol would be needed:

“We don’t anticipate getting anywhere near having to use such a protocol…”

It therefore appears that the Government will not tell us what the rules will be until we are at the very time when they are needed. This makes it seem that the Government does not plan to consult us, the disability community, and the broader public on this important issue now, before the crisis is upon Ontario requiring rationing of critical care. If the Government is only going to make public its directions to hospital when the crisis arises, we won’t have any real chance to have our say.

Minister, Ms. Martin’s answer in the Legislature reads to us as if it were read right out of a minister’s briefing book, carefully crafted to anticipate opposition questions in Question Period. Your Ministry staff understandably anticipated such questions, since the Ontario Human Rights Commission, the Government’s own Bioethics Table, the media, we and others have been raising these concerns with your Ministry and your Government. So carefully-worded a Government answer is especially a cause for deep concern when it is so demonstrably wrong-headed on the issue of planning to fill the vacuum.

4. Please Keep Your Government’s Commitments

Please keep Premier Ford’s commitment to protect the most vulnerable during the COVID-19 pandemic. Please keep his pledge that the Government will be open and transparent in how it responds to the pandemic. Please end the harmful Government secrecy that has pervaded this life-and-death issue.

Please honour your commendable goal, set out in your April 21, 2020 open letter on critical care triage to “make certain that any medical protocols that may be required during this outbreak do not disproportionately affect vulnerable groups, including people with disabilities, older persons, Indigenous communities and racialized people.”

Please act on your recognition in your April 21, 2020 open letter that the views of “human rights and key community experts” should be engaged. It is good that the Bioethics Table spoke to us. However, your Government has prevented us from knowing to what extent they listened to us and acted on our advice, since you are keeping their recommendations secret. We similarly don’t know what you plan to do with the Bioethics Table’s advice.

Please also live up to your Government’s pledge in your April 21, 2020 open letter on critical care triage to be ready for “a wide range of new outbreak scenarios.”

Your Government has now had over eight months to plan for this important issue. It is essential that we speak with you as soon as possible to discuss how to ensure this.

Please stay safe.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC: Premier Doug Ford premier@ontario.ca

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

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

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

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

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

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

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