Ford Government’s Own Bioethics Table Urges It to Cancel Its controversial March 28 Directions to Hospitals on Which Patients to Refuse Critical Medical Care if the COVID-19 Pandemic Overloads Hospitals, and to Make Public the Bioethics Table’s Recommended Replacement for Those Directions – But Will Doug Ford Listen?

Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

Ford Government’s Own Bioethics Table Urges It to Cancel Its controversial March 28 Directions to Hospitals on Which Patients to Refuse Critical Medical Care if the COVID-19  Pandemic Overloads Hospitals, and to Make Public the Bioethics Table’s Recommended Replacement for Those Directions – But Will Doug Ford Listen?

November 2, 2020

          SUMMARY

Serious concern and controversy continue to swirl around the Ford Government’s plans for handling the situation if the growing surge of COVID-19 cases floods Ontario hospitals with more patients than they can handle. Here is the latest news on this deeply distressing issue.

We have just learned that the Ford Government has been told by its own Bioethics Advisory Table that it should withdraw its controversial March 28, 2020 directions to Ontario hospitals on how to decide which patients should be refused needed critical care if the COVID-19 surge overloads hospitals and requires medical care rationing or “triage”. For months, the Ford Government has been told the same thing by the AODA Alliance, other disability advocates and the Ontario Human Rights Commission. Now the Government’s own expert advisors in this specialized area have joined in this call. Last spring, disability advocates united to raise serious concerns that the March 28, 2020 critical care triage protocol includes serious disability discrimination.

We have also just learned that Ford’s Bioethics Table also recommended that its advice to the Government on how to decide such critical care triage cases should be made public. The Ford Government has refused to date to lift its veil of secrecy over this life-and-death issue.

We learned all this late Friday afternoon when the Ontario Human Rights Commission commendably made public its strong October 16, 2020 letter to Ontario Health Minister Christine Elliott. The Ford Government and the Human Rights Commission have seen the Bioethics Table’s secret report and recommendations.

As a result, the AODA Alliance today wrote Health Minister Elliott to again ask her to lift the Government’s unjustified veil of secrecy over the Bioethics Table’s report, and to immediately withdraw its March 28, 2020 critical care triage protocol that it sent to Ontario hospitals last spring. Over one month ago, on September 25, 2020, we wrote Minister Elliott to this effect. She and her Government have not answered that letter. Last month, the Government told the Toronto Star and Radio Canada that it was not prepared to release the Bioethics Table’s report and recommendations.

Below we set out the AODA Alliance’s November 2, 2020 letter to the Health Minister, as well as the Ontario Human Rights Commission’s October 16, 2020 letter to the Health Minister.

For more background on this issue, check out:

  1. The AODA Alliance’s unanswered September 25, 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 May 13, 2020 ARCH Disability Law Centre’s Analysis of the March 28, 2020 Triage Protocol, which the AODA Alliance endorses.
  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 ARCH Disability law Centre’s July 20, 2020 brief to the Bioethics Table on the revised draft triage protocol, which the AODA Alliance endorsed.
  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.

          MORE DETAILS

November 2, 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 2, 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

It is fundamentally wrong and harmful for the Ontario Government to continue to keep shrouded in secrecy its policy, plans and expert advice on how to decide which patients will be refused needed critical medical care if the COVID-19 surge overloads Ontario hospitals, requiring rationing of critical care beds and services. We wrote you on September 25, 2020, over one month ago, asking for prompt answers to four urgent questions, which in substance are these:

  1. Will the Government immediately make public the report and recommendations of the Government-appointed Bioethics Table on the critical care triage protocol, and send it to us and other interested stakeholders, so the public can know what is being considered or recommended on this life-and-death issue?
  1. Will your Government immediately hold an open and accessible public consultation before adopting any clinical care triage protocol, that includes consulting people with disabilities?
  1. Will your Government commit that any directive to hospitals or the health care system on how to undertake critical care triage shall be established in a properly-enacted provincial statute or, if authorized, regulation, and not in a mere “protocol” that some bureaucrat sends to Ontario hospitals?
  1. Will your Government immediately and publicly direct all hospitals that the March 28, 2020 critical care triage protocol is rescinded and is not to be used or followed? Our September 25, 2020 letter to you explained that that protocol suffers from serious problems. It discriminates against patients with disabilities.

You and your Government have not answered our September 25, 2020 letter. The Government has not committed to take any of our requested actions.

Over the month since we wrote you, daily COVID-19 infection rates have steadily increased and set new records in the predicted second wave of infections. This brings Ontario closer and closer to the feared point where critical care triage may become necessary, as has been the case in some other parts of the world.

This shows why Ontario cannot afford any further Government delays or secrecy on this important issue. The need for your swift action is further buttressed by the October 16, 2020 letter to you from the Chief Commissioner of the Ontario Human Rights Commission. In September, the Government’s Bioethics Table had sent a confidential copy of its report and recommendations on critical care triage to the Ontario Human Rights Commission, a report which we and the public have still not seen. The Commission’s October 16, 2020 letter to you reveals some of what the Bioethics Table recommended, stating:

“We also agree with the Bioethics Table’s recommendations that call on the Ministry of Health and Ontario Health to:

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

Your Government has now been urged to lift its veil of secrecy in this area, and to rescind its problematic March 28, 2020 critical care triage protocol, by The Government’s own Bioethics Table, by the Ontario Human Rights Commission (The Government’s flagship public human rights agency) and by leading voices in the disability and seniors communities.

This is even more urgent since the Ontario Human Rights Commission’s October 16, 2020 letter to you reveals that the Commission (which has seen the Bioethics Table’s recommendations) still has concerns with the Bioethics Table’s recommendations from a human rights perspective. As noted above, the Ontario Human Rights Commission has seen those recommendations. We have not.

The Human Rights Commission’s October 16, 2020 letter to you commendably gives general support to the human rights concerns that disability advocates and experts have raised with the Bioethics Table last summer. Referring to concerns raised last summer with the Bioethics Table, the Commission’s October 16, 2020 letter states:

“During these discussions, human rights stakeholders, including ARCH, the AODA Alliance and the Canadian Association for Retired Persons raised serious concerns that the versions of the protocol circulated in March and July disproportionately impacted vulnerable groups and violated human rights. The OHRC generally supports the concerns and recommendations that these, and other stakeholders made in their presentations and submissions to government and the Bioethics Table.”

It is essential for you and senior officials at your Ministry and at Ontario Health review the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, as well as the September 1, 2020 submission by the ARCH Disability Law Centre.

We especially commend the Ontario Human Rights Commission for echoing a serious concern we have raised with you in our September 25, 2020 letter, and earlier with the Bioethics Table, where the Commission wrote:

“Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge”

Put simply, we do not believe that life and death decisions over whether a patient will be refused critical medical care they need, and which is assured to them by our universal health care program, can be governed by a simple memo from some unnamed public servant to Ontario hospitals, labelled as a “protocol”, without a proper legislative mandate.

Minister, we need you and your Cabinet colleagues to now personally intervene in this issue and show the needed leadership. We fear that this issue is now mired in unaccountable layers of bureaucracy within the Ministry of Health and Ontario Health. We have seen no effort by the Ministry or Ontario Health to reach out to us or others who have publicly raised concerns about this important issue, to even learn from us what might be in issue.

May we get a response as soon as possible?

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

October 30, 2020 Posting on the Ontario Human Rights Commission Website Setting Out the Commission’s October 16, 2020 Letter to Ontario Health Minister Christine Elliott

Originally posted at: http://www.ohrc.on.ca/en/news_centre/letter-minister-health-bioethics-table-recommendations-and-proposed-framework-covid-19-triage

Letter to the Minister of Health on Bioethics Table recommendations and proposed framework for a COVID-19 triage protocol

On October 16, 2020, the OHRC wrote to the Minister of Health raising concerns about the proposed framework for a COVID-19 triage protocol to allocate limited critical care services in a potential major surge in COVID-19 cases. Read the letter.

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

RE: Bioethics Table recommendations and proposed framework for a COVID-19 triage protocol

I am writing to you today about the government’s COVID-19 Bioethics Table’s recommendations and proposed framework for a COVID-19 triage protocol to allocate limited critical care services in a potential major surge in COVID-19 cases.

First, allow me to introduce myself as the recently appointed Chief Commissioner of the Ontario Human Rights Commission (OHRC). Since the outset of the COVID-19 pandemic, the OHRC has called for human rights values and principles to guide responses and recovery planning and affirmed the importance of consultation with impacted communities. You may recall my predecessor, Chief Commissioner Renu Mandhane, wrote to you on April 9, 2020, calling for a human rights-based approach to developing a triage protocol.

The OHRC was pleased when the Bioethics Table reached out for our input to ensure a consultative and principled methodology to address the human rights dimension of the pandemic. We welcomed the opportunity to help facilitate and participate in discussions with stakeholders, Ontario Health and the Bioethics Table on the triage protocol.

During these discussions, human rights stakeholders, including ARCH, the AODA Alliance and the Canadian Association for Retired Persons raised serious concerns that the versions of the protocol circulated in March and July disproportionately impacted vulnerable groups and violated human rights. The OHRC generally supports the concerns and recommendations that these, and other stakeholders made in their presentations and submissions to government and the Bioethics Table.

In September, the Bioethics Table informed stakeholders that it submitted recommendations and a proposed framework to your Ministry and Ontario Health. The Bioethics Table also shared the recommendations and proposed framework confidentially with the OHRC. The OHRC and stakeholders have significant concerns that the Ministry has not released the recommendations and proposed framework for public feedback, and in our view, this is particularly urgent and necessary in light of the emerging “second wave” of COVID19 cases.

Further, while the OHRC commends the Bioethics Table for holding productive consultations and incorporating into the proposed framework many of the human rights principles and recommendations identified by stakeholders, the OHRC still has concerns which we have shared with the Bioethics Table and Ontario Health.

Since we understand that the recommendations and proposed framework are now with the Ministry of Health awaiting further direction, the OHRC is calling on the Ministry of Health to:

  • Ensure the protocol recognizes that human rights is the primary guiding principle and law in accordance with the primacy clause under section 47 of Ontario’s Human Rights Code
  • Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge
  • Exclude the Clinical Frailty Scale (CFS) and any other clinical assessment factors and tools that are not validated for critical care resource allocation. The Bioethics Table recognizes the CFS was designed and validated to help identify treatment plans and accommodation supports for frail patients, and not for critical care triage. Used as a triage tool, the CFS would likely disproportionately impact Code-protected groups and may not be in keeping with the Code including the duty to accommodate
  • Define short-term predicted mortality as the predicted risk of death in the initial weeks, and not twelve months after the onset of critical illness. The Bioethics Table recognizes that relatively little mortality occurs between six and twelve months.

We also agree with the Bioethics Table’s recommendations that call on the Ministry of Health and Ontario Health to:

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

It is vitally important that the COVID-19 triage protocol accounts for the needs, capacities and circumstances of all vulnerable groups. Indeed, it is a matter of life and death. The OHRC will continue to make itself available to work with and support the Ministry of Health and Ontario Health on this important endeavour and I would welcome the opportunity to meet you and discuss next steps at your earliest convenience.

Please be advised that the OHRC may make this letter public in keeping with its statutory mandate under section 29 of Ontario’s Human Rights Code.

Sincerely,

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

Chief Commissioner

cc:       Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

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

Hon. Doug Downey, Attorney General

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

OHRC Commissioners