Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
Ontario Human Rights Commission Corroborates that the Ford Government withdrew the Government’s Widely-Condemned Critical Medical Care Triage Protocol – but as COVID-19 Infections Sky-Rocket, the Government Continues to Conceal Its Plans for Critical Care Triage
November 13, 2020
In very encouraging news, the Ontario Human Rights Commission has corroborated that the Ford Government has in fact rescinded and withdrawn the Government’s widely-condemned March 28 2020 critical care triage protocol. That seriously-flawed document directed Ontario hospitals how to choose which patients, who need critical medical care, should be refused that care, if the COVID-19 surge overloads hospitals with more patients than they can serve. That protocol was infected with serious discrimination against some patients with disabilities.
On Thursday, November 5, 2020, the Ford Government said in the Legislature that it had withdrawn its March 28, 2020 critical care triage protocol. It only publicly acknowledged this during Question Period, in response to the opposition NDP pressing the Government on this issue. We then had no corroboration whether the Government had in fact told Ontario hospitals that this protocol was rescinded and should not be followed. On November 9, 2020, the AODA Alliance wrote Ontario Health Minister Christine Elliott, seeking corroboration of this. on that date, AODA Alliance Chair David Lepofsky also filed a Freedom of Information application, seeking documentation to confirm that the March 28, 2020 critical care triage protocol was withdrawn. The Government has not answered or even acknowledged either that letter or that Freedom of Information application.
Since then, the Ontario Human Rights Commission notified the AODA Alliance that on November 6, 2020, it wrote Health Minister Christine Elliott a new letter, set out below. In it, the Commission confirms that the Government wrote hospitals on October 29, 2020, notifying them of the withdrawal of the March 28, 2020 critical care triage protocol. The Human Rights Commission wrote:
“We were very pleased to learn that on October 29, Ontario Health sent a communication to Critical Care Leads, Hospital CEOs and Ontario Health Regional Leads stating that the March 28 critical care triage protocol and later draft versions are rescinded and should not be used. The OHRC and human rights stakeholders, including ARCH Disability Law, the AODA Alliance and the Canadian Association for Retired Persons had raised serious concerns that these earlier versions had a disproportionate impact on vulnerable groups and violated human rights.”
We are pleased and relieved to learn this information. This is yet more proof that concerted grassroots efforts by the disability community can yield important results. We acknowledge with deep gratitude all those who teamed up on this life-and-death issue. The ARCH Disability Law Centre played an important role, partnering with the AODA Alliance and several other disability organizations and dis ability rights experts in a joint effort over the summer and fall that is a model of effective collaboration.
This is only a partial victory, though a very important one. As the November 9, 2020 AODA Alliance Update makes clear, the Ford Government has now created a deeply-troubling vacuum. There are no provincial directions on how critical care triage is to be conducted if the COVID-19 surge continues, and overloads Ontario’s hospitals.
That the Ford Government is inexcusably persisting in excessive secrecy in this area is revealed by information in the Human Rights Commission’s letter. As noted above, that letter reveals that on October 29, 2020, the Ford Government wrote key players in the health care system to rescind the March 28, 2020 critical care triage protocol. Yet, the Government did not make that fact public then, or for another week. as also noted above, the Government only made this public on November 5, 2020 because the NDP pressed it on this issue in Question Period. We and others have been asking about this for months. Why did the Government not lift the veil of secrecy without need to resort to an opposition question about this in the Legislature during Question Period? This is hardly consistent with premier Ford’s written commitment to Ontarians with disabilities in his May 15, 2018 letter to the AODA Alliance during the 2018 Ontario election, that:
“Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.”
We commend the Ontario Human Rights Commission for urging the Government to now make public the recommendations for filling this vacuum that the Government received two months ago from the Government-appointed Bioethics Table. We share the Commission’s concern that the Government should openly address this issue now, and not wait until the COVID-19 situation gets significantly worse. With the recent sky-rocketing increases to the daily COVID-19 infections in Ontario, and yesterday’s prediction that these increases could quadruple in the next month or so, the Ford Government cannot simply hope and wish this issue away.
Put simply, conditions are significantly deteriorating right now, according to the Government’s modelling, made public yesterday. We need to have our say now, and we need to know now what the Government is thinking of doing in this life-and-death area.
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For more background on this issue, check out:
- The AODA Alliance’s November 9, 2020 news release on this issue, including its unanswered November 9, 2020 letter to Ontario Health Minister Christine Elliott and the exchange in the Legislature on November 5, 2020 where the Ford Government first publicly admitted that it had rescinded the flawed March 28, 2020 clinical care triage protocol.
- The AODA Alliance’s unanswered September 25, 2020 letter and its November 2, 2020 letter to Health Minister Christine Elliott
- The August 30, 2020 AODA Alliance final written submission to the Ford Government’s Bioethics Table
- 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
- 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
- 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.
- 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.
November 6, 2020 Letter from the Ontario Human Rights Commission to Ontario Health Minister Christine Elliott
Letter to Minister of Health to follow up on Bioethics Table recommendations and proposed framework for a COVID-19 triage protocol
November 6, 2020
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 follow up on my letter to you dated October 16, 2020, about the COVID-19 Bioethics Table’s recommendations and proposed framework for a triage protocol to allocate limited critical care services in a potential major surge in COVID-19 cases.
We were very pleased to learn that on October 29, Ontario Health sent a communication to Critical Care Leads, Hospital CEOs and Ontario Health Regional Leads stating that the March 28 critical care triage protocol and later draft versions are rescinded and should not be used. The OHRC and human rights stakeholders, including ARCH Disability Law, the AODA Alliance and the Canadian Association for Retired Persons had raised serious concerns that these earlier versions had a disproportionate impact on vulnerable groups and violated human rights.
However, we are very concerned that the October 29 communication indicates a revised framework might be distributed to health care professionals should pandemic conditions deteriorate significantly. That is too late. Human rights stakeholders have not yet seen the Bioethics Table’s latest proposed framework and recommendations submitted to your Ministry in September. In my letter on October 16, I supported the Bioethics Table’s recommendation to circulate the proposed framework and recommended next steps for public feedback, and again call on your Ministry to authorize their release.
It is vital that the government share the current draft of the protocol and meaningfully engage with the vulnerable groups that data now shows are disproportionately impacted by the COVID-19 pandemic, including Indigenous communities, Black and other racialized communities, persons with disabilities, older persons and others. Their perspectives and participation throughout the process to develop and implement any critical care triage protocol is a matter of human rights.
The OHRC will continue to be available to support this important work and again I extend my invitation to meet with you and discuss next steps at your earliest convenience.
Ena Chadha, LL.B., LL.M.
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