Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
Ontario Human Rights Commission Again Commendably Raises Human Rights Concerns with Ontario’s Critical Care Triage Plans, While the Ontario College of Physicians And surgeons Appears to Wrongly — Green Light Those Plans The AODA Alliance Responds!
April 23, 2021
Things are moving fast on the terrifying critical care triage front. The AODA Alliance and the disability organizations with whom we are collaborating are trying to stay ahead of a potential tidal wave facing us all.
- We understand that within the past two days, the Ontario College of Physicians and Surgeons wrote all Ontario Physicians. If our information is correct,, the College gave doctors the green light, if the Ontario Government directs it, to refuse or withdraw critical care in accordance with the critical care triage protocol which we have repeatedly blasted as disability-discriminatory.
We have just written the College of Physicians to ask for confirmation of this. If it is accurate, then we strongly object to this action, and ask the College to rescind it. The College is the self-governing professional body that licenses and regulates physicians in Ontario. As our letter, set out below, explains, the College never got our input on our serious disability-related concerns about Ontario’s disability-discriminatory critical care triage protocol and plans.
- On this same front, today the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, has commendably issued another public statement on this critical care triage issue. We set it out below, as well. She reiterates the Ontario Human Rights Commission’s serious concerns with the Ontario Government’s critical care triage plans.
- Yesterday our April 8, 2021 news release raised concerns about the possibility that the Ford Government might agree in advance to indemnify doctors if they deny critical care to a patient who needs it, should critical care triage be directed in Ontario. Beyond that news release, there are so many ramifications if the Government takes this step.
For one thing, it will implicate the Government directly in any patient’s death that results from critical care triage. We would argue that that is the case, even without any indemnification arrangement with doctors. However, an indemnification arrangement cements it even more.
Will the Government give doctors a blank check in advance, paying all their damages claims and paying for their defence lawyers, no matter how a doctor acts when deciding who lives and who dies? Why is the Government not removing the flagrant disability discrimination from the January 13, 2021 Critical Care Triage Protocol, both because it is wrong, and because the taxpayer should not be giving physicians a guaranteed advanced blank check for such human rights violations. It certainly seems that the public should have some say in this life and death issue.
For more background
- 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.
- Ontario’s January 13, 2021 triage protocol.
- 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.
- The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed in December 2020.
- 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.
April 9, 2021 Letter from the AODA Alliance to the Registrar and CEO of the Ontario College of Physicians and Surgeons
Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Society for All People with Disabilities
Dr. Nancy Whitmore, Registrar and CEO
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2
Dear Dr. Whitmore,
Re: Possibility of Rationing or Triage of Critical Care in Ontario
We write to ask about the position of the Ontario College of Physicians and Surgeons on Ontario’s plans for critical care triage if COVID-19 overwhelms hospitals, requiring rationing of critical care. We are especially concerned that those plans include flagrant disability discrimination, a lack of required due process for vulnerable patients whose lives are at stake, and a troubling failure to respect basic legal requirements.
We understand that the College of Physicians and Surgeons appears to have sent an email to all licensed physicians in Ontario within the past 48 hours on the topic of critical care triage. It is our understanding that this email states in material part as follows:
“Critical Care Triage
If we reach a point where Ontario’s critical care capacity can no longer meet the surge in demand, what are physicians’ obligations with respect to the withholding or withdrawal of potentially life-saving or life-sustaining care?
The College appreciates how challenging the pandemic has and continues to be for physicians working in critical care capacities. If the pandemic worsens and intensive care admissions increase, physicians may be faced with very difficult decisions regarding the allocation of scarce resources. It is essential that physicians be supported in making the extraordinary decisions they may be faced with and that the public trust how those decisions are being made.
The College notes that the provincial government has enabled a centralized authority, its command tables, to manage, oversee and co-ordinate the implementation of appropriate critical care triage tools should this become necessary. While only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to re-allocate those resources to another patient, the College recognizes that issues concerning withholding potentially life-saving or life-sustaining treatments may also arise.
Given the imperative of allocating critical care resources in a manner that aims to save as many lives as possible, the College acknowledges that physicians may, in following direction and guidance from the command tables, need to withhold potentially life-saving or life-sustaining treatments in a manner that departs from the expectations set out in our Planning for and Providing_Quality_ End-of -Life Care policy. To the degree that compliance with triage frameworks, once initiated by the provincial command tables, results in departures from these expectations, the College is supportive of physicians acting in accordance with the command tables’ triage protocols. Transparent and sensitive communication with patients’ families will continue to be of paramount importance in these situations.”
Can you please confirm whether this is what the College has written to all Ontario doctors? If it is not, please let us know what the College has directed physicians on this topic.
If this or words to like effect are what the College has directed, we ask that the College immediately and publicly rescind it. It fails to take into account or even acknowledge the clear disability discrimination and denials of due process in Ontario’s critical care triage plans, which are contrary to the Ontario Human Rights Code and the Charter of Rights. Numerous serious human rights concerns with Ontario’s critical care triage plans have been repeatedly and publicly voiced by respected disability organizations like the AODA Alliance, the ARCH Disability Law Centre and others, as well as by the Ontario Human Rights Commission. Our efforts on this issue are extensively documented on our website’s health care page.
Before the College gives the Ontario Government’s critical care triage plans an official regulatory stamp of approval, it should, at a minimum, speak with those of us who are raising such serious concerns, and effectively take our concerns into account. We most recently crystalized many of those concerns in the AODA Alliance‘s February 25, 2021 report on Ontario’s critical care triage plans.
We regret that the Ontario Health Ministry and Minister has not met with us, or even responded to our detailed correspondence on point. We have been relegated to the Government’s external advisory Bioethics Table. That Table makes no decisions, and has wrongly rejected key concerns that disability advocates have raised, too often without any explanation. After August 31, 2020, we did not had any meetings with that Bioethics Table except one on December 17, 2020. Our input at that last meeting appears to have been largely if not totally rejected, again, without reasons.
From the content of the Colleges statement which we quote above, if correct, it would appear that the Government and those acting on its behalf must have had direct content with the College in this connection. Can you please let us know what specific input, if any, the College itself has received regarding our disability concerns, and what input, if any, the College gave the Ontario Government about disability concerns with the critical care triage plans.
Making this situation worse, frontline doctors and hospitals have been urged to rely on the triage protocol, in a seriously flawed and misleading January, 23 2021 on-line webinar. For example, that webinar told doctors that the Ontario Human Rights Commission was consulted on this protocol, but did not tell them that the Commission and community groups have serious human rights objections to it.
It is our position that physicians who act pursuant to Ontario’s critical care triage plan and protocol do so at their peril. We share the view that there must be public trust and transparency in this issue. It has to date been mired in protracted secrecy as well as questionable public statements by the Government and those who have publicly defended Ontario’s critical care triage plans.
The College of Physicians and Surgeons of Ontario is required to regulate physicians in the public interest, protecting patients. The College should take a position on this critical care triage issue that is fully respectful of the rights and needs of vulnerable patients whose very lives are at stake during critical care triage.
We would welcome the chance to meet to provide the College with the input and information it should consider to take an informed and appropriate position on this issue.
Please stay safe.
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
Premier Doug Ford email@example.com
Christine Elliott, Minister of Health, Christine.Elliott@ontario.ca
Helen Angus, Deputy Minister of Health firstname.lastname@example.org
Raymond Cho, Minister of Seniors and Accessibility Raymond.email@example.com
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 firstname.lastname@example.org
Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services Janet.Menard@ontario.ca
Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission email@example.com
April 9, 2021 Public Statement by Chief Commissioner of the Ontario Human Rights Commission
Today, the Ontario Human Rights Commission issued the following statement by Chief Commissioner Ena Chadha on human rights concerns with COVID-19 critical care triage:
April 9, 2021
OHRC statement on urgent human rights concerns with critical care triage
Unfortunately, Ontario is in its third wave of COVID-19. During its April 7 press conference to announce a stay-at-home order, the Ontario government emphasized that ICU admissions are increasing faster than the “worst-case scenario” predicted by their experts. The government also said it has not sanctioned any triage protocol should doctors be forced to decide who gets access to critical care and who does not. And last night, Ontario Health ordered hospitals to postpone non-urgent surgeries because of the growing caseload of COVID-19 patients.
The Ontario Human Rights Commission (OHRC) urgently calls on the government to clarify the status of the Adult Critical Care Clinical Emergency Standard of Care for Major Surge protocol (the Emergency Standard of Care) that was circulated to hospitals in January. The government must also confirm that the Health Care Consent Act prevails to protect the rights of patients and families at this time. Further, government should require hospitals to promptly collect data on vulnerable groups most affected by the pandemic, including older people, people with disabilities, Indigenous peoples and Black and other racialized people admitted to ICUs and whenever critical care is withheld or withdrawn.
Over the past year, the OHRC has repeatedly raised concerns about various versions of the triage protocol and the Emergency Standard of Care, including writing to the government last November and December.
On March 1, the OHRC highlighted concerns that the Emergency Standard of Care document and supplementary materials (such as an online short-term mortality risk calculator) included potentially discriminatory content, and called on the government to not implement Emergency Standard of Care without sufficient public input or consultation. The OHRC also called on the government to publicly release and consult human rights stakeholders, including the OHRC, on the latest versions of the proposed critical care triage framework to make sure that this document and the Emergency Standard of Care, were consistent with and uphold the Ontario Human Rights Code. We asked the government to do this before a potential third wave overwhelmed Ontario’s health-care system. Regrettably, that did not happen.
As the pandemic continues, the need to reflect human rights principles and respect human rights obligations in every response is greater than ever before.
We must ensure that vulnerable groups disproportionately affected by the pandemic are not further disadvantaged by measures taken to manage critical care services in the days and weeks to come.