What Is the Ford Government Doing to Ensure Patients with Disabilities Don’t Face Discrimination in Access to Life-Saving Critical care If the Surge in COVID-19 Cases Overloads Ontario’s Hospitals?

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/

What Is the Ford Government Doing to Ensure Patients with Disabilities Don’t Face Discrimination in Access to Life-Saving Critical care If the Surge in COVID-19 Cases Overloads Ontario’s Hospitals?

September 25, 2020

          SUMMARY

If the Government does not get the recent worrisome rise in the number of new COVID-19 cases in Ontario under control, there is a risk that our hospitals eventually may not be able to handle all the new cases. Since early in the COVID-19 pandemic last spring, the AODA Alliance together with other disability advocates, has been pressing the Ford Government to ensure that patients with disabilities are not discriminated against because of their disability in getting access to needed critical medical care, in the event that a surge in COVID-19 cases exceeds the capacity of Ontario hospitals.

Today, as our latest effort on this issue, the AODA Alliance wrote Ontario’s Health Minister Christine Elliott. We want to find out what is going on. Our letter, set out below, summarizes key events since the COVID-19 pandemic began. It then asks the Minister of Health four important questions. In short, we are trying to learn what The Government will do to ensure that patients with disabilities don’t face discrimination in any medical triage that may have to take place, if the pandemic gets worse.

Last spring, a March 28, 2020 protocol was sent to Ontario hospitals directing how to handle such critical care triage. It’s approach to medical triage included disability discrimination. A revised draft of that protocol on which we were consulted this summer, and which the AODA Alliance made public on July 16, 2020, was similarly discriminatory.

This issue has now landed squarely on the desk of the Minister of Health. Her Government has received recommendations on how to handle this issue from a Government-appointed committee of doctors and bioethicists. That is the same group that wrote the earlier protocol that gave rise to these disability discrimination concerns. We don’t know what they have recommended to the Government.

Our letter calls on the Minister of Health to now make those important recommendations public and to let us know what the Government plans to do with them. We need the Health Minister to ensure that her Government prevents disability discrimination if there must be medical triage during the COVID-19pandemic.

For more background on this issue, check out:

  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 Alliances 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 and ARCH’s September 1, 2020 final submission to the Bioethics Table, both of which are endorsed by the AODA Alliance.
  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.

This is a very busy time for the AODA Alliance. We continue to wage our non-partisan campaign for accessibility for people with disabilities on so many fronts at the same time. Today’s letter to Health Minister Christine Elliott addresses the danger of discrimination against patients with disabilities in access to life-saving health care during the COVID-19pandemic. Earlier this week, we wrote the Minister of Education Stephen Lecce to call for new action to ensure that students with disabilities are fully and safely included in school re-opening. Before that, at the start of the week, we wrote Ontario’s Accessibility Minister Raymond Cho to find out what the Ford Government is doing to effectively enforce the Accessibility for Ontarians with Disabilities Act. Let us know what you think. Email us at aodafeedback@gmail.com

^        MORE DETAILS

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/

September 25, 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 no exaggeration to state that we write about an urgent matter of life and death. We seek your immediate help.

In Ontario, a second wave of COVID-19 is underway. It was foreseen and feared.

What are the Government’s plans if there is a surge in COVID-19 cases this fall or winter that floods Ontario hospitals with more patients needing critical care than there are critical care beds, health care staff, and equipment for them? At present, this situation is shrouded in uncertainty. There is a serious risk that there will be discrimination against patients with disabilities in getting access to needed critical care services. In this letter we ask you to take immediate action on this issue to protect vulnerable patients. We summarize how we got here, and then set out four specific questions needing your Government’s response. The events described here are amply documented on the AODA Alliance’s COVID-19 page.

This past March, Ontario Health sent Ontario hospitals a March 28, 2020 critical care triage protocol. Among those patients who need critical care, it directs which of these patients will be granted critical care and which patients will be refused, if a surge in cases exceeds hospital capacity. Thankfully, that protocol has not had to be invoked, because the number of COVID-19 cases did not spiral out of control.

That March 28, 2020 triage protocol was not made public last spring. The Government did not consult the public, such as people with disabilities, before it was approved and sent to Ontario hospitals.

When word of the March 28, 2020 triage protocol was leaked to some in the disability community, it was widely condemned as embodying disability discrimination. In the face of that criticism last April, your Government claimed that the triage protocol was only a draft. Yet it was evidently not marked as a draft.

Strong voices from the disability community and from the Ontario Human Rights Commission have called on your Government to rescind the March 28, 2020 triage protocol and to direct health care providers that it is not to be used. In the five months since then, the Government has not rescinded it.

The March 28, 2020 critical care triage protocol was written by a Government-appointed committee of doctors and bioethicists, which is called “The Bioethics Table.” When this issue was revealed last spring, your Government committed to consult human rights and community experts on this protocol. Over the summer, the Bioethics Table invited a group of disability advocates and experts to give input through a series of virtual meetings. The Bioethics Table gave us and our colleagues a revised draft of the critical care triage protocol and asked for our input. We posted that revised draft on the AODA Alliance website on July 16, 2020.

Over the summer, the AODA Alliance was an active participant in the disability meetings with the Bioethics Table. Our review of the revised draft triage protocol revealed that it continued to embody serious disability-based discrimination. The Bioethics Table’s meetings with the disability community advocates and experts revealed even more serious cause for concern. These concerns were thoroughly explained and documented in two written submissions to the Bioethics Table, one by the AODA Alliance and one by the ARCH Disability Law Centre.

At our final virtual meeting with the Bioethics Table on August 31, 2020, the disability advocates and experts made their final presentations to the Bioethics Table. The Bioethics Table submitted its final report to Ontario Health on September 11, 2020, and to the Ministry of Health on September 14, 2020. It has also been sent to the Ontario Human Rights Commission. It has not been provided to us.

With the recent rapid increase in daily COVID-19 infections in Ontario, this issue remains a live and increasingly urgent one. We hope and trust that as the Minister of Health, you share our strong view that no critical care triage protocol should be in place that would discriminate based on disability in access to life-saving critical care. We hope and trust as well that you share our view that if any critical care triage were to be implemented, there should be in place due process protections for critically-ill patients who are at risk of being denied life-saving medical care that they need. The revised draft protocol that the Bioethics Table wrote seriously lacks that due process for patients. The members of the Bioethics Table commendably sought our input on the due process protections that should be provided. The AODA Alliance’s written submissions address this issue.

As well, we hope and trust that you and your Government agree that life and death decisions that could deny a critically-ill patient a needed medical treatment must be governed by a validly-enacted law, and not simply by a protocol that some government agency decides to send to hospitals. We raised with the Bioethics Table our serious concern that the March 28, 2020 triage protocol, which has not been rescinded, falls well short of a validly-enacted law. Especially in something as vital as the right to life-saving medical care, the Government must strictly adhere to the rule of law.

With the new troubling surge in COVID-19 infections in Ontario, time is of the essence in dealing with this issue. We therefore ask the following:

  1. Will the Government immediately make public the Bioethics Table’s report 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? There has been far too much secrecy surrounding this issue of great public importance.
  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 protocol sent to Ontario hospitals?
  1. As noted earlier, the March 28, 2020 critical care triage protocol has not been rescinded. The Government has not directed that it is not to be followed.

This leaves a cloud of uncertainty hanging over the health care system. It unfairly leaves people with disabilities in a state of fear. The longer the March 28, 2020 triage protocol is left unrescinded, it continues to fester, embedding itself deeper and deeper within the health care system.

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?

May we get responses to these important questions 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