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Even More Reason to Worry About Secret Ontario Plans Regarding Rationing or Triage of Life-Saving Critical Medical Care Is Revealed in Two Newspaper Articles and a Letter Secretly Sent to Ontario Hospitals

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
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January 22, 2021


We today share more media coverage on the Ford Government’s frightening plans for deciding who will be refused life-saving critical medical care they need, if the out-of-control COVID-19 pandemic forces the rationing or triage of critical care. More revelations give rise to more serious dangers facing Ontarians with disabilities and others if that eventuality arises an eventuality that a key Government medical advisor Dr. James Downar described as being close, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

We here set out two disturbing new news reports on this issue, and a letter addressed to Ontario hospitals by a member of the Ford Government’s Ontario Critical Care COVID Command Centre, Dr. Andrew Baker. Below you will find:

1. A January 21, 2021 article in the National Post, which quotes AODA Alliance concerns, among others.

2. A January 20, 2021 article in the Globe and Mail and, which also quotes AODA Alliance concerns, among others.

3. An undated letter from Dr. Andrew Baker to Ontario hospitals, giving directions regarding the administration of critical care triage if it becomes necessary.

Before we set out those items below, we first explain the serious new concerns revealed here. These supplement our amply-documented major concerns with the Government’s plans and secretive planning that we have been making public over the past days, weeks and months.

For more background on this issue, check out the following:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.

5. 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.


More Terrifying News Hidden Behind a Fog of Unjustified Ford Government Secrecy

According to the January 21, 2021 National Post report set out below, the Ford Government’s external advisory Bioethics Table has recommended to the Health Ministry that the Ford Government pass an executive order that permits doctors to cut off life-saving critical care they have already started to administer to a patient, and which the patient needs, if critical care has to be rationed or triaged. By this, doctors would not just be told they can decide which patients in a line-up outside the intensive care ward will be allowed in, if there are too few beds for all patients in the lineup. More drastically, the doctors would also have the power to evict some patients from the intensive care unit, who were previously admitted, and give their beds and ventilators over to a patient or patients who are outside the unit, and waiting in the lineup to get in.
It is not clear to us that the Ontario Government can authorize this at all, much less by acting in secret to pass an executive order. On the January 13, 2021 edition of The Agenda with Steve Paikin, AODA Alliance Chair David Lepofsky raised the serious concern that for a doctor to do this could raise possible issues under the Criminal Code. We earlier raised a concern about this in the AODA Alliance’s December 17, 2020 letter to the Minister of Health Christine Elliott and in our December 21, 2020 news release. As with all our other letters to the Government on this issue, that letter has never been answered. No Ministry of Health officials ever discussed this with us.
Still worse, we are entirely unsatisfied that any such executive order (an American legal term) would be constitutional under the Charter of Rights and would be permissible under the Ontario Human Rights Code, especially in light of the serious disability discrimination at the core of the Ontario Critical Care COVID Command Centre’s January 13, 2021 triage protocol (addressed in detail in our unanswered January 18, 2021 letter to the Minister of Health). This shows with even greater clarity why it is wrong for the Government to leave the planning and execution of directions on this issue solely to physicians and bioethicist, who have no expertise in these important legal issues. The Ford Government should be leading a public debate on its plans, rather than cloaking it in secrecy and claiming it is all left to experts (i.e. doctors) talking to other experts (also referring to doctors). We doubt that the medical profession wishes to have the Government slough this all off on them.
This gives us serious grounds to fear that the Government may try to continue to hide from any public discussion of this issue until the last minute. It may be thinking about then secretly rushing through some sort of executive order or regulation behind close doors at the last minute, if it becomes necessary due to hospital overloads. We strongly urge that the Government not take such an approach. The consequences for Ontarians including Ontarians with disabilities are literally life-and-death. This requires any Government action to now be discussed and debated publicly.
Amidst this frightening news, it is noteworthy that the Bioethics Table’s September 11, 2020 report to the Ford Government said that doctors involved in triage decisions should be protected from liability. The opposite is the case. Anyone making such a life-and-death decision should not be immunized from responsibility and accountability for their conduct. No one is above the law.
Compounding this bad news is the erroneous claim in the January 20, 2021 Globe and Mail article, below, by Dr. James Downar, that says in substance that the Ontario triage protocol does not discriminate against patients with disabilities. The article, which describes Dr. Downar as the one who drafted the Ontario protocol, includes:
Dr. Downar said the protocols will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.

The AODA Alliance, the ARCH Disability Law Centre and other disability advocates and experts last summer amply showed the Government-appointed Bioethics Table (of which Dr. Downar is a prominent member) that it would seriously discriminate against patients with disabilities for doctors to in any way use the Clinical Frailty Scale’ when assessing any patient for possibly being triaged out of critical care services. Under the Clinical Frailty Scale as mandated in the January 13, 2021 triage protocol, in the case of a critical care patient age at least 65 with a progressive disease but who has more than six months to live, their likely mortality would be assessed in part by the number of activities of daily living that they can perform without assistance, having regard to each of these specific activities: dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The CFS is a clear illustration on its face of direct disability discrimination.
You can read what the AODA Alliance said in great detail on this in its August 30, 2020 written submission to the Bioethics Table. You can watch AODA Alliance Chair David Lepofsky explaining this to the Bioethics Table in his August 31, 2020 concluding presentation to that Table, which is available online as a captioned video. You can also read how the ARCH Disability Law Centre documented this disability discrimination in ARCH’s September 1, 2020 written submission to the bioethics Table.
Yet despite all of this advice, the Bioethics Table recommended use of the disability discriminatory Clinical Frailty Scale in some triage decisions. The January 13, 2021 triage protocol directs doctors to use it in some triage decisions. The fact that the January 13, 2021 triage protocol generally professes the need to respect the human rights of people with disabilities among others does not reduce that discrimination one iota.
It is clear from these two newspaper articles and from the January 13, 2021 edition of Agenda with Steve Paikin that Dr. Downar is now serving in effect as the key public defender if not its spokesperson of the Ford Government on this issue. It is important for the Government to make clear who is making decisions on this issue. We wrote and tweeted to Dr. Downar over a week ago to ask what involvement, if any, he has in the Ontario Critical Care COVID Command Centre.
He has not answered. We emphasized that our concern is not with any one doctor. We are concerned that the Ford Government open up and make public its secret internal actions and deliberations on this triage issue. We all have the right to know what is being planned, and who is doing all the planning and decision-making.
Finally, we are deeply troubled by the secret letter to Ontario hospitals from the Ontario Critical Care COVID Command Centre’s Dr. Andrew Baker, set out below. It shows that the Ford Government had sent an earlier secret draft critical care triage protocol to Ontario hospitals back on November 13, 2020. We were never shown that document. It was sent a mere 8 days after the Ford Government stated in the Legislature during Question Period on November 5, 2020 that it thought it unlikely that such a document would have to be sent to health professionals.
It is also clear from the letter below that the November secret 13, 2020 triage document had recommended that the triage protocol include some due process appeal opportunities for a patient who is to be denied life-saving critical care. We now know that that has subsequently been harmfully ripped right out of the January 13, 2021 triage protocol, to the serious detriment of patients fighting for their lives.
As we stated in the January 21, 2021 AODA Alliance Update, the Government is claiming that it has not approved any of these triage plans. If so, why is Dr. Baker or any other doctor or committee sending such instructions or directions to hospitals? Who is taking responsibility for this life-and-death issue?

The National Post January 21, 2021

Originally posted at
Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals

Ontario is being asked to temporarily suspend the law requiring doctors get patient or family consent before withdrawing treatment from people facing a grim prognosis Author of the article: Sharon Kirkey
The COVID-19 vaccine has started to be administered in Canada, but Ontario, Quebec and other provinces still need to prepare protocols to determine who should get critical care and who should be left behind in the event that hospitals become flooded with COVID patients. PHOTO BY CARLOS OSORIO/POOL/AFP VIA GETTY IMAGES
Canada’s Supreme Court ruled in 2013 that a major Toronto Hospital could not withdraw life-support from a minimally conscious and severely brain-damaged man without his family’s consent.
Now, in another sign of these extraordinary times, the Ontario government is being asked to temporarily suspend the law requiring doctors get consent of patients or families before withdrawing a ventilator or other life-sustaining treatment from people facing a grim prognosis, should COVID-19 crush hospitals.
The recommendation for an Executive Order to suspend the province’s Health Care Consent Act for withdrawal of treatment in the ICU, should the situation become so dire, comes as Ontario, Quebec and other provinces prepare protocols to determine who should get critical care and who should be left behind if hospitals are flooded with COVID patients.
The request, deeply disturbing to disability advocacy groups, comes from Ontario’s COVID-19 Bioethics Table, which is recommending that the province ensure liability protection for all those who would be involved in implementing the Proposed Framework including an Emergency Order related to any aspect requiring a deviation for the Health Care Consent Act. The act requires doctors obtain agreement from patients, or their substitute decision makers, with disputes resolved by the Consent and Capacity Board, an independent tribunal.
This week, the Ontario Critical Care Covid Command Centre issued an emergency standard of care to prepare hospitals for the worst-case scenario, an Italy-like surge in demand for critical care. The over-arching objective, the document states, is to save the most lives in the most ethical manner possible.
A critical care triage should be considered an option of last resort, invoked only after all reasonable attempts have been made to move people to other hospitals where there is space and staff to care for them, and only for as long as the surge lasts, the document says.

The goal is to minimize deaths, minimize the risk of discrimination and unconscious bias against people with disabilities, racialized communities and other vulnerable groups, and minimize moral injury and burnout among staff forced to decide who may live and who may die.
According to the document, prepared on behalf of Ontario’s critical care COVID command centre, priority should be given to people with the greatest likelihood of surviving whatever it is that brought them to hospital COVID-19, heart attack, liver disease, a bleed in the brain or other life-threatening illness. Those with a high likelihood of dying within 12 months from that critical sickness would receive lower priority for an ICU bed.
It’s really important to be clear here this is not about how long you’re likely to live, it’s not a life span question, said Dr. James Downar, head of the division of palliative care at the University of Ottawa and a member of the Bioethics Table. It’s your probability of being alive 12 months after developing critical illness.
The protocol is meant to be applied to new patients, or people already in hospital whose condition is worsening. We’re suggesting, out of a principle of fairness, the same approach should apply to people inside the ICU, Downar said. It would be unfair to treat people differently depending on the timing that they presented.
Nobody likes the idea of ever withdrawing life-support on somebody without their permission, without their consent, Downar said. But in a triage scenario, we’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole, and trying to maximize the number of people who will survive an overwhelming surge.
Dr. James Downar: We’re talking about a scenario where the focus is no longer on the individual himself, but now on our population as a whole. PHOTO BY OTTAWA HOSPITAL RESEARCH INSTITUTE VIA CP
The document now being circulated to Ontario hospitals doesn’t include a provision for withdrawal of potentially life-sustaining treatment without consent. Instead, it says that ICU doctors should regularly reassess people admitted to ICU, and consider withdrawal of life support through a shared decision-making process with SDMs (substitute decision-makers) if a patient does not appear to be improving.
But Downar and other doctors said it’s not possible to operate a triage model in which all decisions are made with the consent and permission of people involved, because many people would simply opt out.

We are going to say, by the way, we are taking your family member off the ventilator in lieu of another patient who we feel has a better prognosis, given this pandemic condition. Do you agree?’ I think that if we did that we would not get consent. Nobody is going to give us consent, said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.
The Bioethics Table’s request is now before the Ontario Health Ministry. We are hopeful that, as part of the state of emergency, should we need it, that there will be an executive order allowing us to withdraw, Downar said
With an Executive Order in place, doctors could put off escalating triage and continue to offer intensive care to every person who might benefit, including borderline cases right up to the point that the critical care beds are literally full, he said. ICUs could run at full capacity. Only then, as new patients come in who meet the triage criteria a lower risk of death and who need beds would ICU care slowly start to be withdrawn from people who aren’t responding and are least likely to, Downar said.
Without the Executive Order, triage would have to be started sooner, in order to reserve beds for people with a high likelihood of survival. Fewer people would be offered intensive care, and more people would die, Downar said.
It’s difficult to imagine how troubling that would be, that we would actually have to suspend the consent act, said Dr. Andrea Frolic, director of the Program for Ethics and Care Ecologies at Hamilton Health Sciences and a consultant to Ontario’s COVID critical care command centre.
It would be a rare circumstance that we would have to resort to implementing a care plan that would not have the consent of the patient or substitute decision-maker, Frolic said.
It’s not a life span question. It’s your probability of being alive 12 months after developing critical illness
But should hospitals become maxed out, with a massive surge of people coming through the doors who have a very high chance of survival, and people in the ICU who aren’t benefitting from critical care and who are highly likely to die if we don’t have the tool to provide equitable access to care, that will create a lot of distress on the system, Frolic said.
It becomes a first-come, first-served system, she said a car crash victim who needs surgery and a short ICU stay to save his life can’t get into the ICU, because he arrived after a person with end-stage cancer and COVID-related pneumonia who may not be likely to survive their critical illness, or weeks later. That is a situation of inequity caused by fate, really, or chance. One person happened to get critically ill before another person.
Withdrawing treatment without consent would be very rare, happen only after every effort to reach consensus with the patient and family has been exhausted, and only as a last resort, Frolic added.
Families who feel strongly could use all avenues of advocacy, she said. The hope is that families will see what’s happening around them. You can imagine if we get to this level of surge, there are patients in hallways; there are patients in gymnasiums. My hope is that families will see their own patient deteriorating but will see the context that we’re in a public health emergency, that it’s not personal, it’s not what we wish to do, it’s a situation caused by the pandemic.
Mariam Shanouda, a lawyer at ARCH Disability Law Centre in Toronto, said she was flabbergasted when told by the National Post about the prospect of an order to allow doctors to operate outside the consent act.
This is literally life and death and to not only give doctors that power to operate outside (the act) but to insulate them from any liability whatsoever, that is not something to be taken likely, Shanouda said.
We don’t know the process by which these decisions will be made, who will be making the decisions to withdraw care. Is there going to be an appeal procedure whereby a family can challenge that decision? Is there going to be accountability?
There are huge legal questions here and they need to be discussed in the open because we are talking about possibly taking an active action that could accelerate someone’s death, said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance (AODA).
If they were to amend the consent legislation, and if that were valid, and if it were constitutional and if it got around all the criminal law problems, what will that mean? It means if anybody goes to hospital and gets intensive care, they don’t have any confidence they’re going to be able to stay there, Lepofsky said.
They’ve got to lie there knowing not only are they fighting for their life, but they are also aware that, at any time, a doctor could decide their chances aren’t so good, somebody coming in has got better chances, sorry, we’re pulling the plug on you.’ Email: | Twitter: sharon_kirkey

Globe and Mail January 20, 2021

Originally posted at
How doctors in Quebec, Ontario will decide who gets care if coronavirus hospitalizations continue to surge


If the pandemic gets much worse in Canada’s hardest-hit provinces, grading systems developed by doctors and approved by provinces will help physicians decide who gets potential lifesaving treatment and who does not.
The purpose of the grading systems, filled with scores, scales and categories, is to establish a ranking of patients in need of critical care including COVID-19 patients with the aim of determiningwho will get access to increasingly scarce critical care beds, ventilators and ICU staff. The pandemic critical care triage protocol scores patients on severity of injury or illness, likelihood of immediate survival, and one-year prognosis beyond the intensive care unit.
Another objective, to limit bias and to depersonalize who will receive care, is spelled out at the top of each of the nine pages of the Quebec version of the Intensive Care Access Form. Do not write the name, it says.
Our usual way to work is we treat the patient in front of us, one person at a time. This says we have to start thinking about what’s best for the largest number of people, said Dr. Paul Warshawsky, chief of critical care at Montreal’s Jewish General Hospital. It’s to help us select patients in a way that is fair and equitable, not based on how loudly a family is advocating. Across the country, medical systems are already triaging tens of thousands of patients who need scheduled surgeries but must wait as COVID-19 taxes resources.
Intensive care triage is the next major step for hospital life-and-death decisions.
Critical care triage protocols are circulating in several provinces, including hard-hit Ontario and Alberta. Only Quebec has so far made its final triage form public, along with a 48-page explainer.
Ontario’s full, official protocol, similar to Quebec’s, is expected to be publicly released soon, according to Dr. James Downar, a specialist in critical care at The Ottawa Hospital who drafted Ontario’s protocol. It is not clear if Alberta will make its protocol public.
No Canadian medical system has had to invoke formal critical care triage during the pandemic. New York hospitals invoked crisis standards of care in the first wave, but doctors complained the triage guidelines were more theoretical than practical. They often ended up improvising who received care. Los Angeles County put protocols in place this month but has yet to formally start triage.
If you run out of resources, you have three options: First-come first-serve, which is deeply unfair and brings a lot of extra mortality. A pure lottery random system has lower risk of inequity, but would lead to a lot of preventable death, Dr. Downar said. They’re not morally defensible.
You are left with option three: Try your very best to come up with criteria that can be applied consistently and explicitly, based on evidence. Avoid criterion that would assign value to a human being, but just assign probability they would live.
If the protocol is invoked, doctors in Quebec would fill out the ICU access form for every patient in critical care or waiting for it. A team of two doctors and an ethicist for each hospital would receive them, rank patients and make the final calls.
The Quebec form would decide who gets into ICU but also who could be removed from ventilators if patients with a higher probability of survival need them. It is not clear if Ontario’s final protocol will contain this piece.
In Quebec, the intensive care protocol is supposed to kick in once the province reaches 200 per cent of normal ICU capacity. Most ICUs in Quebec are not full, but some in Montreal are above 100 per cent. Critical patients in Toronto are being moved to hospitals across Southern Ontario.
It’s scary, we’re not at the doorstep of the protocol but we’re near it, Dr. Warshawsky said. The Jewish General ICU is currently running at 130 per cent. I’m not sure we can get to 200 per cent. Intensive care has two main functions when dealing with an influx of COVID-19 patients. One is constant monitoring each nurse is in charge of no more than two patients in Quebec. The other is breathing assistance, where ventilators pump oxygen into a patient’s lungs.
Most intensive care triage plans set out three crisis stages. At the first stage, patients with only a 20 per cent chance or less of survival within a year would be denied intensive care. Two other stages with survival rates of 50 per cent and 70 per cent, respectively, kick in if the situation deteriorates.
Then, patients are sorted. In the Quebec form, physicians complete a trauma- and injury-severity score if the patient needs care for a major accident. With cardiac arrest, organ failure and metastatic cancer patients, a number of indicators are used for the first two stages. At stage three, the existence of these afflictions alone would prevent treatment in the ICU.
Patients over 60 years old with burns over 40 per cent or more of their bodies would be denied any ICU care.
The form’s final pages rank conditions that make recovery from assisted breathing less likely, such as dementia and frailty, raising alarm among disability advocates. Weight and muscle loss, diminished ability to walk are among clinical frailty symptoms.
The tools they use conflate disability with frailty, said Mariam Shanouda, a lawyer with the Toronto’s ARCH legal clinic, who represents people with disabilities. We already know there are demographic sectors more affected by COVID-19. Black people, other racialized minorities, Indigenous people, people with disabilities they will inevitably be most affected by this protocol and they have not been sufficiently consulted.
The Quebec protocol was reviewed by committees involving dozens of medical professionals, lawyers and ethicists, but a handful of patients. I don’t know why this wasn’t examined prior to the pandemic as part of pandemic preparedness, said Vardit Ravitsky, a professor of bioethics at the University of Montreal.
Public consultation on something involving life-and-death decisions like this should be as inclusive as possible.
Judging frailty or dementia could discriminate against both the elderly and disabled, said David Lepofsky, chairman of advocacy group Accessibility for Ontarians with Disabilities Act Alliance. He warned the protocol will turn triage doctors into a law unto themselves.
Mr. Lepofsky, an adjunct professor at the University of Toronto’s law school, has written to Ontario Health Minister Christine Elliott to demand the protocol be scrapped and a process launched for a full debate and legislation. They have had 11 months to figure this out, Mr. Lepofsky said. And they haven’t.
Dr. Downar said the protocols will not exclude people on the basis of disability. No iteration of the protocol would do that, and our protocols explicitly exclude it.
Dr. Downar added doctors and nurses left with impromptu triage practices would create far greater risk of bias. But, he acknowledged, even a system that controls subjectivity and implicit bias and is purely focused on mortality risk will still affect some groups more than others. Mortality risk is not evenly distributed in society.
The final page of Quebec’s protocol outlines criteria for resolving ties, putting a priority on younger people and workers in the health care system, elements not part of Ontario’s draft protocol.
In both Ontario and Quebec, if all else is equal, random chance will be used for the final selection of critical care patients. With a report from Jeff Gray in Toronto.

Undated Letter from A Member of the Ontario Government’s Critical Care COVID Command Centre to Ontario Hospitals

Ontario Critical Care COVID19 Command Centre_ Readiness for Emergency Standard of Care for Critical Care communication January 13 2021.pdf Dear Colleagues:
Please find attached documents that describe how to implement an emergency standard of care for admission to critical care.
This emergency standard of care does not apply now. This will require a clear, distinct, and specific time of initiation and discontinuation by the Ontario Critical Care COVID19 Command Centre.
Matt Anderson, in his recent memo Further Actions for Optimizing Care, indicated that, All hospitals are asked to review and standardize their critical care admission criteria in consultation with the Ontario Critical Care COVID-19 Command Centre. The emergency standard of care (attached) is intended to support this action. It operates within the Health Care Consent Act of Ontario; it does not involve the protocol-driven withdrawal of invasive physiologic support, but does involve the protocol-driven decisions to not offer admission to critical care.
It would be advisable for physicians and your hospital to prepare now to operationalize this emergency standard for when it is initiated. While the forms are included in the document, they are attached here as separate pdfs for ease of printing. Furthermore, here is a site that contains these documents as well as a narrated slide deck for use with knowledge translation. This site can be referenced for updates to these documents and supplementary resources to support implementation.
Along with developing readiness for this change, I recommend concurrently refreshing a commitment to consistent and proactive approaches to goals of care conversations with patients. Some of the tools within this document may be useful in this regard.
Please note that on November 13, 2020, I sent a draft Protocol which does involve protocol-driven withdrawal of invasive physiologic support. This emergency standard of care document supersedes that draft protocol. The substantive differences between this document and the November 13, 2020 draft Protocol are:
1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee; 3. No protocol-driven withdrawal of invasive physiologic support, which would require an executive order from Cabinet to operate outside of the Health Care Consent Act.
However, an updated version of the Protocol may be sent in the near future. Readiness of physicians and hospitals for an updated Protocol will be expedited by preparing to implement this emergency standard of care. The same principles and tools apply to both this Emergency Standard of Care and the forthcoming Protocol. Both approaches benefit from being derived from a Framework developed by the Ontario COVID-19 Bioethics Table. Both approaches emphasize a commitment to human rights, ethical principles, continuous improvement, and fair processes. A system of data collection about the application of this emergency standard of care is being created for the purpose of monitoring and revision of this approach. Information about how to transmit data to this system will be forthcoming soon. Thank you so much for all you are doing,
Andrew Baker Incident Commander Ontario Critical Care COVID19 Command Centre