In A Second COVID-19 Wave If There Aren't Enough Ventilators for All Patients Needing Them, A new Draft Ontario Medical Triage Protocol Would Continue to Discriminate Against COVID-19Patients with Disabilities

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: http://www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: http://www.facebook.com/aodaalliance/

July 16, 2020

SUMMARY

1. Whats the Serious Issue?

Despite having four months to fix this serious problem, in the COVID-19 crisis the Ford Government has still not rooted out the current danger to people with disabilities, induced by a protocol that Ontario Health sent to all hospitals last spring. That protocol lets hospitals violate basic human rights of COVID-19 patients with disabilities if a surge in COVID-19 cases meant theres not enough ventilators for all critical patients needing them. Despite months of efforts by disability advocates, a new draft medical triage protocol which the Government has under consideration, and which we reveal to the public here while it is open for input, leaves the danger of disability discrimination in place.

Thankfully, Ontario now has no ventilator shortage. However a second wave of COVID-19 cases later this year could create a surge in demand for ventilators. To date, the Ford Governments troubling handling of what to do if there are too few ventilators for COVID-19 patients has been improperly shrouded in secrecy.

Early in the COVID-19 crisis, Ontario Health, part of the Ontario Government, sent a very troubling March 28, 2020 medical triage protocol to Ontario hospitals. It spelled out what to do if there is more demand for life-saving ventilators than there are ventilators to go around. The Government did not make that protocol public. After it was leaked early last April to some within the disability community, disability advocates slammed it and called for it to be rescinded and replaced.

2. Whats New on This Issue?

Here is the late-breaking news on this issue, backed by Government documents that we are making public in this Update.

1. We now confirm that the Government sent the original March 28, 2020 medical triage protocol to Ontario hospitals. A July 7, 2020 letter from Ontario Healths team drafting the triage protocol, set out below, states:

The draft recommendations were shared by Ontario Health with hospitals on March 28, 2020 to help hospitals to prepare for the possibility of a major surge in critical care demand and to prevent catastrophic health outcomes as have been seen in other jurisdictions.

2. It is now clear and beyond dispute that the Government has still not rescinded that original March 28, 2020 medical triage protocol. Disability advocates including the AODA Alliance, as well as the Ontario Human Rights Commission, have called on the Government to rescind that original medical triage protocol, because it violates the human rights of patients with disabilities. Ontario Healths June 15, 2020 letter to the Ontario Human Rights Commission, set out below, states the following regarding the medical triage protocol:

Our goal is to have a final document by the end of July, or to rescind it.

3. A Government-appointed committee of physicians and bioethicists that have been assigned to lead the work in this area have written a new revised draft of the medical triage protocol. We among others have received it. We are here making it public, setting it out below, along with related correspondence between the Ontario Human Rights Commission and Ontario Health.

4. On July 15, 2020, a number of members of Ontario Healths committee of physicians and bioethicists, assigned to lead this protocols development, held a two-hour virtual consultation with several disability community representatives, including the AODA Alliance. This is the first time the AODA Alliance had an opportunity to speak with those leading this issue for the Ford Government. We were not named on that Committees list of organizations it had consulted, or to be consulted. This virtual meeting came some three months after a senior official involved in the development of the initial protocol announced on province-wide television that it was a top priority for the Government to consult on this protocol.

As detailed further below, the disability advocates consulted at that meeting unanimously showed that the revised draft medical triage protocol still creates a real and serious danger of discrimination against patients with disabilities.

5. Ontario Healths team developing this new draft medical triage protocol aims to submit to the Ford Government its recommendation for a revised medical triage protocol by July 31, 2020. Written submissions can be sent to that team by writing jcb.director@utoronto.ca up to July 20, 2020.

6. The ARCH Disability Law Centre, which has played a tremendous leadership role on this issue, will be making a written submission by July 20, 2020 in which the AODA Alliance will contribute our input. We will make it public as quickly as we can.

3. Whats Wrong With the New Revised Draft Medical Triage Protocol?

Here is a summary of just some of the many serious problems with the revised draft medical triage protocol that is set out below.

1. This new revised draft medical triage protocol does not effectively undo the damage that the March 28, 2020 protocol caused for people with disabilities. The Government had spread that harmful earlier protocol across Ontarios health care system. Any revised protocol must fully and effectively undo that damage.

2. The draft revised protocol continues to discriminate against patients with disabilities. It includes some vague references to human rights. Those references are entirely insufficient to eliminate the discrimination that the original protocol and this revised draft protocol each cause. As but one example, the revised draft protocol, like the original one, continues to use the Clinical Frailty Scale, which itself presents real and serious disability human rights concerns. Its prominence in the protocol has been reduced but its use has not been eliminated. Whether or not there are any studies on that scale does not detract from the fact that that scale should not be used.

3. On April 14, 2020, the AODA Alliance made public a Discussion Paper on this issue. It set out clear illustrations of things that need to be spelled out in the medical triage protocol to address the risk of discrimination against patients with disabilities. The committee drafting the protocol has seen that Discussion Paper. However, the revised medical triage protocol does not include any of the Discussion Papers proposals, nor does it cure any of the harms to patients with disabilities that the Discussion Paper illustrates. The protocol should be amended to include all the specific directions and recommendations in the AODA Alliances Discussion Paper.

4. The revised draft medical triage protocol uses vague criteria that any two doctors might interpret very differently. It speaks of patients with a low probability of surviving more than a few months. One doctor might think that means 2 to 3 months. Another doctor might think that means 6 to 8 months. Its directions must be far clearer and less open to arbitrarily different applications from one doctor to the next.

5. The revised medical triage protocol uses lofty and vague language such as its references to ethics, equity, human rights, and fairness. However, those lofty terms will do nothing to stop a well-intentioned doctor or hospital from taking action that discriminates against patients with disabilities. Indeed, as is the case here, many if not most of the barriers facing people with disabilities are created without any intent to harm people with disabilities.

For example, the revised draft medical triage protocol states:

Triage decisions should treat similar cases similarly based on clinical criteria, i.e., those with similar prognoses should be treated similarly.

The medical triage protocol might thereby be meant to implement the authors notions of fairness and equality. However, this flies in the face of the Supreme Court of Canadas important ruling in its landmark decision on the meaning of equality rights, Andrews v. Law Society of British Columbia [1989] 1 SCR 143, where the Court proclaimed:

Thus, mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights.

6. If there is a shortage of ventilators during a second wave of COVID-19, this revised draft medical triage protocol in effect creates a death panel of two doctors who will decide in an individual case in an individual hospital who gets the ventilators and who does not, among all the patients who need them. It requires no prior training on this issue for the doctors chosen to play that role. It provides no fair procedures or due process to the very patient whose life hangs in the balance. The patient and their family have no right to be heard by those deciding the patients fate. There is no assurance that the family can get their family doctor to chime in and add their voice to the discussion. There is no right of appeal to anyone else in the hospital.

There is no duty on the doctors or hospitals to give the patient or their family basic rights advice. This is so even though the revised draft medical triage protocol gives superficial and inadequate lip service to due process concerns, stating:

Due process considerations (e.g., transparency about reasons for triage decisions) are especially important in this context. Hospitals should plan for how they might proactively prepare patients and families for possible outcomes of the triage process as well as how they would respond transparently and compassionately to patient or family concerns should these arise.

Appendix E to the revised draft protocol sets out a sample of what a doctor might tell a patient and their family if it has been decided to refuse them a needed ventilator due to a ventilator shortage. That seriously deficient text gives the patient and family no rights advice or other basic information of what they can do if they wish to dispute the decision and to have it reconsidered.

The revised draft Medical triage protocol in substance wrongly and summarily rejects the idea of any appeal, stating:

critically ill patients must be assessed rapidly in a dynamic and over-taxed environment, a formal process for patients and families to appeal triage decisions may not be feasible or appropriate (e.g., if critical care is contrary to the patients wishes).

4. For More Background

* The April 7, 2020 virtual public forum on the impact of COVID-19on people with disabilities, jointly organized by the AODA Alliance and the Ontario Autism Coalition. During this event, ARCH Disability Law Centre executive director Robert Lattanzio first made public the existence of the original March 28, 2020 medical triage protocol, and the disability human rights problems that it creates.

* The April 8, 2020 open letter, spearheaded by ARCH, identifying the serious disability human rights violations in the original March 28, 2020 medical triage protocol.

* The AODA Alliances April 14, 2020 Discussion Paper on what the medical triage protocol should include. In the three months since this was made public, no negative feedback was received about its recommendations.

* The Ford Governments April 21, 2020 announcement that it would consult community and human rights experts on the medical triage protocol. It claimed that the March 28, 2020 protocol was only a draft even though it was never marked draft.

* The ARCH Disability Law Centres detailed May 13, 2020 analysis of the serious disability human rights violations, which the AODA Alliance endorses.

* To learn more about the many barriers that impede patients with disabilities in Ontarios health care system, read the AODA Alliances February 25, 2020 Framework on what the promised Health Care Accessibility Standard should include, to be enacted under the Accessibility for Ontarians with Disabilities Act.

* The AODA Alliances health care web page, to learn more about the advocacy efforts to tear down the barriers facing people with disabilities in Ontarios health care system.

* The AODA Alliances COVID-19 web page details the coalitions efforts to advocate for the needs of people with disabilities during the COVID-19 pandemic.

Below we set out:

* The second draft Critical Care Medical Triage Protocol.

* the July 7, 2020 letter from the Ontario COVID-19 Bioethics Table of Ontario Health to organizations taking part in the July 15, 2020 roundtable on the triage protocol and people with disabilities.

* the June 15, 2020 letter from Ontario Health to the Ontario Human Rights Commission

* the June 4, 2020 letter from the Ontario Human Rights Commission to Ontario Health

* the June 4, 2020 Ontario Human Rights Commission letter to the Ontario Minister of Health We always invite your feedback. Write us as aodafeedback@gmail.com

MORE DETAILS

Text of the Revised Draft Ontario Medical Triage Protocol

Critical Care Triage for Major Surge in the COVID-19 Pandemic: Updated Recommendations

Note: This document offers recommendations developed by provincial experts in bioethics in consultation with clinical experts and informed by stakeholder feedback. It reflects best knowledge and advice at the time of writing and is subject to revision based on changing conditions and new evidence in the COVID pandemic.1

Overview:
During the COVID-19 pandemic, a major surge in demand for critical care may exceed available health system capacity. Difficult decisions would need to be made about how critical care resources should be allocated to meet patient needs. Although advanced health systems have experience with and are well-prepared to manage minor and moderate surges in demand for critical care, there is limited clinical and ethical guidance for how a major surge in demand for critical care should be managed. In Ontario, major surge is defined as: an unusually high increase in demand that overwhelms the health care resources of individual hospitals and regions for an extended period of time, where an organized response at the provincial or national level is required.2 The purpose of this document is to propose a critical care triage approach for major surge in the COVID-19 pandemic, to raise key ethical and clinical considerations for critical care triage in this context, and to offer suggestions for implementation of the critical care triage approach in the Ontario health system if needed.3

Critical care triage in the COVID-19 pandemic should aim to maximize the survival and recovery of as many critically ill patients4 as possible and as equitably as possible within available critical care resources. In a pandemic, critical care triage for major surge will inevitably involve an alternative standard of care. For this reason, critical care triage for major surge should be considered an option of last resort to be invoked only when all existing local or regional critical care resources have been used, all reasonable attempts have been made to move patients to or resources from areas with greater critical resource availability, and only for as long as the major surge lasts and would require an emergency order in order to be implemented in Ontario. When not all patient needs can be met within resource constraints, triage is the systematic and consistent process of determining priorities for treatment based on objective and explicit clinical criteria. This is especially important in the context of a major surge, when the number of patients with critical illness exceeds critical care capacity. In the absence of explicit triage criteria and a systematic and consistent process of triage, inconsistencies in clinical practice may result in increased mortality and morbidity.

Critical care triage for a major surge should be predictable and apply to an entire region rather than to individual hospitals alone. In the current COVID-19 pandemic context, the decision to initiate triage falls under the authority of, and would be made by, the Ontario Health Critical Care Command Centre with full situational awareness of the existing critical care resources and demand for critical care. In a major surge, a proportionate response to increasing and decreasing levels of demand on scarce critical care resources is essential. The degree of triage should be calibrated to the degree of demand in order to limit the possibility that a patient will be denied critical care resources unnecessarily. As critical care demand increases in a major surge, triage criteria should become proportionately more stringent; similarly, as critical care demand decreases in a major surge, triage criteria should become proportionately less stringent. Triage criteria and their application should be evaluated at regular intervals to ensure that the overarching goal of maximizing survival and recovery of critically ill patients within available critical care resources is met.

Critical care triage for major surge in the COVID-19 pandemic should be guided by ethical principles. Relevant ethical principles include medical utility, proportionality, fairness, equity, beneficence (including non-abandonment), respect for autonomy, and accountability. Respect for human rights and solidarity with all community members are key values of an ethical triage approach. In a major surge in demand for critical care resources, the necessity of critical care triage does not change the fact that the lives of all Ontarians are of equal moral worth and that all patients must be cared for and receive appropriate symptom management. Those who do not receive critical care resources due to triage should continue to receive other appropriate treatments and supports, including palliative care if needed. Importantly, critical care triage may have a differential impact on some patient populations who may be disadvantaged due to pre-existing health and social inequities or conscious or unconscious bias in clinical settings. Evidence of systemic bias against specific groups should be considered as reason to review and potentially revise these triage recommendations and their application.

Guiding Ethical Principles:
The overall purpose of a triage system in a pandemic is to minimize mortality and morbidity for a population overall as opposed to an individual mortality and morbidity risk. There are published frameworks outlining ethical principles to guide triage systems.1-4 Recent studies of Canadian perspectives on priority setting of critical care resources in a pandemic indicate a preference for maximizing the number of lives saved,5,5 followed by the application of a fair procedure for prioritization of people with similar likelihood of benefit.1,6 In addition, there is published guidance on how triage systems can minimize risk of discrimination based on factors unrelated to a patients clinical needs and mitigate discriminatory application of such frameworks in practice.6-8 This body of work informs the ethical underpinnings of the proposed triage approach.

In the context of a major surge in demand for critical care in a pandemic, the following ethical principles are foremost:

1. Medical Utility Aim to derive the maximum benefit from critical care resources by prioritizing those patients who are most likely to survive their critical illness. When resources are scarce in a pandemic, patients who are very likely to die from their critical illness or who are very likely to die in the near future7 even if they recovered from their critical illness would have a lower priority for critical care resources.
2. Proportionality Ensure that the number of individuals who are negatively affected by the use of critical care triage criteria in a pandemic does not exceed what would be required to accommodate the surge in demand. Given that critical care capacity and demand can be dynamic, access to critical care should be restricted only to the extent necessary to achieve maximum benefit within resource constraints and should become less restrictive as resources become available or the surge abates.
3. Fairness Ensure all patients have a fair chance to benefit from critical care by allocating critical care resources on the basis of clinical criteria relevant to predicting the patients likelihood of survival. Triage decisions should treat similar cases similarly based on clinical criteria, i.e., those with similar prognoses should be treated similarly. In the event that clinical criteria are not sufficient to prioritize one patient over another, a fair procedure should be used.
4. Equity and Respect for Human Rights Affirm and safeguard the equal moral worth of all people in Ontario by implementing measures to minimize the risk of perpetuating or exacerbating the effects of systemic discrimination or marginalization on access to health care8 and to uphold individual human rights to the extent possible in a pandemic emergency.9 This includes ensuring triage decisions: i) are based on objective clinical criteria grounded in best available evidence and not any particular demographic,10 disease, or disability independent of an individual patients prognosis,11 ii) involve an individual assessment of a patients clinical condition in relation to the triage criteria and not to a judgment of the individuals social value, quality of life or long-term survival, and iii) are supported by accommodations as appropriate for an individual patient to the extent possible in an infection control context (see Respect for Autonomy below).
5. Beneficence Act in a way that promotes patients well-being to the greatest extent possible given resource constraints by clarifying patient goals of care (i.e., patient wishes, beliefs, and values regarding their treatment) in relation to their critical care needs, providing continuity of care for all patients appropriate to their clinical circumstances, including those whose critical care needs cannot be met, and ensuring no patient is left without care. Although resource scarcity in a pandemic may limit the ability to meet all patient needs, maintaining a caring relationship with all patients is essential.
6. Respect for Autonomy Ensure all patients have a chance to make their goals and wishes known and to have treatment provided in alignment with these goals and wishes wherever possible. Patients (or their substitute decision-makers) may need support to make free and informed decisions about their care. To ensure effective communication and informed decision-making, individual patients may require accommodations (e.g., plain language, use of communication devices, interpretation services) and/or participation of attendant care worker or other support person to the extent possible in an infection control context.
7. Accountability Remain answerable for decisions made in the context of triage. This means communicating triage decisions, including the criteria used to make those decisions, in an open and honest manner to patients or their substitute decision-makers and to the broader community served. It also involves monitoring the implementation of the triage approach to ensure decisions are based in best clinical evidence and expertise supported by ethical reasoning. Triage decisions, criteria, and processes should be evaluated at regular intervals at local, regional and provincial levels to assess the extent to which they are clinically and ethically justified.

In a pandemic context, there is an intrinsic tension between some of the ethical principles outlined above. On the one hand, a criteria-based triage approach that focuses on an individual clinical assessment of predicted mortality and not on any other factors (demographic, quality of life, social standing, etc.) offers a defensible way to reconcile some of the tensions between the principle of medical utility (saving the most lives possible) and the principle of equity (mitigating systemic discrimination or implicit bias in health care). On the other hand, for patients who might wish but who are found ineligible for critical care in a major surge, the pandemic context creates a tension between the principles of medical utility and respect for autonomy, and underscores the importance of the principle of beneficence to ensure all patients receive care even if critical care treatment is not available. The evolving COVID pandemic context in Ontario reveals pre-existing health and social inequities in health care, which a triage approach by itself will be unable to resolve. However, the potential adverse consequences of a triage approach for vulnerable groups can be mitigated in a few ways, including: i) the systematic collection of data on triage outcomes to monitor the effect of the triage approach on vulnerable groups, and ii) proactive measures taken upstream in the community and across the health system to prevent members of vulnerable groups from exposure to COVID-19 in the first place. Some of these tensions may not be fully resolved in a pandemic. For this reason, the principles of proportionality and accountability are essential bulwarks for an ethical triage approach under difficult pandemic circumstances.

Clinical Triage Criteria for Critical Care in a Major Surge:
Explicit criteria-based triage decision-making has been recommended in other published guidance for critical care in a pandemic.12 Use of explicit criteria fosters consistency, advances medical utility and fairness, and supports accountability. It may also alleviate clinician burden at a time of high stress.13 Eligibility and ineligibility criteria are specified below based on the best available evidence and expert opinion regarding predicted mortality. A patient should meet one of the eligibility criteria and should not meet any of the ineligibility criteria for access to critical care. Where there is insufficient evidence to support a reasonable clinical judgement regarding whether a patient meets ineligibility criteria, a decision of ineligibility should be avoided. In all cases, an individualized review of each patients clinical condition should be performed, ensuring not to assume that any specific diagnosis is determinative of prognosis or near-term survival without an analysis of current and best available evidence and the individuals ability to respond to treatment. Please note: these criteria apply only to patients aged 18 years and should only be used in the context of a major surge in demand for critical care.

Eligibility criteria were outlined by Christian et al.9 and are repeated here:

Variable
Eligibility Criteria for Critical Care Admission
Requirement for invasive ventilator support
Refractory hypoxemia (SpO2 <90% on FiO2 0.85) OR
Respiratory acidosis with pH <7.2 OR
Clinical evidence of respiratory failure OR
Inability to protect or maintain airway
Hypotension
Low systolic BP (e.g., SBP <90 mm Hg for most adults) OR
relative hypotension with clinical evidence of shock (altered level of consciousness, decreased urine output, end-organ hypoperfusion), refractory to volume resuscitation requiring vasopressor/inotrope support that cannot be managed on a medical ward SpO2 = oxygen saturation as measured by pulse oximetry

Ineligibility criteria for critical care triage in a pandemic have typically fallen under two categories: (1) criteria that indicate a low probability of surviving an acute episode of critical illness, and (2) criteria that indicate a low probability of surviving more than a few months regardless of the acute episode of critical illness.9 These categories are not mutually exclusive, as life-limiting illnesses affect prognosis from acute illness, and acute illness affects the trajectory of chronic illness. The criteria outlined below would limit eligibility for critical care if someone is very likely to die from their critical illness or are very likely to die in the near future even if they recovered from their critical illness. Please note: these criteria are not exhaustive and are meant to reflect known evidence and/or clinical experience-based prognostic indicators for specific conditions. Some medical conditions not listed may also indicate a similarly poor prognosis, and such patients should be triaged accordingly. Conversely, some medical conditions listed may not indicate a poor prognosis in specific situations and such patients should not be found ineligible. Clinicians should use their best clinical judgment informed by these clinical triage criteria as appropriate to determine whether an individual patients clinical circumstances would indicate that they should receive critical care resources. The tools listed in the table below can be found in Appendix C.

Criterion
Level 1 Triage Scenario (Aiming to exclude people with >~80% predicted mortality)
Level 2 Triage Scenario (Aiming to exclude people with >~50% predicted mortality)
Level 3 Triage Scenario (Aiming to exclude people with ~>30% predicted mortality) A
Severe Trauma with predicted mortality >80% based on TRISS score Severe Trauma with predicted mortality >50% based on TRISS score Trauma with predicted mortality >30% based on TRISS score
B
Severe burns with any 2 of: Age >60, >40% total body surface area affected, inhalation injury Same as Level 1
Same as Level 1
C
Cardiac arrest
* Unwitnessed cardiac arrest
* Witnessed cardiac arrest with non-shockable rhythm
* Recurrent cardiac arrest
Same as Level 1
Cardiac arrest

D
Progressive, late or end-stage illness marked by severe cognitive impairment, clinically defined as an inability to independently perform basic activities of daily living at baseline (2-4 weeks before admission). This criterion does not refer to all conditions that cause cognitive impairment or all conditions clinically defined by an inability to independently perform basic activities of daily living – see explanatory note at end of table. Same as Level 1
Progressive, end-stage illness marked by moderate or severe cognitive impairment, clinically defined as an inability to independently perform multiple instrumental activities of daily living (IADLs – e.g., finances, medications, transportation) or any of the basic activities of daily living (BADLs – e.g., bathing, dressing, feeding) at baseline (2-4 weeks before admission). This criterion does not refer to all conditions that cause cognitive impairment or all conditions clinically defined by an inability to independently perform instrumental or basic activities of daily living – see explanatory note at end of table. E
Progressive, end-stage neurodegenerative disease
Same as Level 1
Progressive neurodegenerative disease
F
Metastatic malignant disease with any of the following:
* ECOG class >=2
* Disease progressing or stable on treatment
* Active treatment plan with >80% predicted mortality during or soon after critical illness * Unproven (experimental) treatment plan
* Treatment plan that would only be started if the patient recovers from critical illness Metastatic malignant disease with any of the following:
* ECOG class >=2
* Disease progressing or stable on treatment
* Active treatment plan with >50% predicted mortality during or soon after critical illness * Unproven (experimental) treatment plan
* Treatment plan that would only be started if the patient recovers from critical illness Metastatic malignant disease
G
Advanced and irreversible immunocompromised
Same as Level 1
Same as Level 1
H
Severe and irreversible neurologic event with >80% risk of death or poor outcome based on: * For Intracerebral Hemorrhage a modified ICH score of 4-7
* For Subarachnoid Hemorrhage, a WFNS grade 5 (GCS 3-6)
* For Traumatic Brain Injury, the IMPACT score
* Acute ischemic stroke alone would not be excluded at this level
Severe and irreversible neurologic event with >50% risk of death or poor outcome based on: * For Intracerebral Hemorrhage a modified ICH score of 3-7
* For Subarachnoid Hemorrhage, a WFNS grade 3-5
(GCS 3-12 OR GCS 13-14 AND focal neurological deficits)
* For Traumatic Brain Injury, the IMPACT score
* For acute ischemic stroke, an NIHSS of 22-42.
Irreversible neurologic event/condition with >30% risk of death or poor outcome based on: * For Intracerebral Hemorrhage a modified ICH score of 2-7
* For Subarachnoid Hemorrhage, a WFNS grade 2-5 (GCS <15)
* For Traumatic Brain Injury, the IMPACT score
* For acute ischemic stroke, an NIHSS of 14-42.
I
End-stage organ failure meeting the following criteria:
Heart
* Chronic End-stage Heart Failure with NYHA Class 4 symptoms, ineligible for advanced therapies (mechanical support, transplant) Lung
* COPD with chronic home O2 >12h per day or breathlessness at rest
* Cystic Fibrosis with FEV1 <20% predicted when measured at time of clinical stability
* Pulmonary fibrosis with VC or TLC <60% predicted, baseline PaO2 <55 mmHg, or secondary pulmonary hypertension * For pulmonary hypertension, anyone with ESC/ERS high risk criteria (see below) Liver
* Chronic Liver Disease with failure of 2 or more organ systems (ACLF Grades 2-3) * MELD score >=25

Note that patients who meet these criteria may be eligible for ICU admission if they are currently on an organ donation waiting list and would be given highest priority if admitted to ICU (e.g., status 4/4F for liver transplantation). This does not include people who have been referred to a transplant service but have not yet been listed for a transplantation. This also would not apply if organ donation processes are halted due to triage conditions precluding organ procurement.
End-stage organ failure with one-year mortality risk >30% as suggested by an unscheduled admission for an exacerbation or complication of their chronic illness in the past 12 months or previous organ transplant with evidence of chronic rejection or chronic organ dysfunction in the transplanted organ. Note that some admissions (e.g., catheter or access infections) may not suggest an elevated risk of mortality, and for some less common conditions (e.g., CF) unscheduled admissions may not suggest an elevated risk of mortality and specialist input should be sought. J
Anyone with a Clinical Frailty Score of >=7 (on the 9-point tool) at baseline (2-4 weeks before admission) due to a progressive illness or generalized deterioration of health status (see explanatory note at end of table)
Anyone with a Clinical Frailty Score of >=5 (on the 9-point tool) at baseline (2-4 weeks before admission) due to a progressive illness or generalized deterioration of health status (see explanatory note at end of table) Same as Level 2
K
Elective palliative surgery
Same as Level 1
Elective or emergency palliative surgery
L
Anyone receiving mechanical ventilation for >=14 days with a ProVent score of 4-5.
Anyone receiving mechanical ventilation for >=14 days with a ProVent score of 2-5. Anyone receiving mechanical ventilation for >=14 days who is not improving M
Any other clinical condition that is judged to have a >80% chance of mortality during or soon after critical illness
Any other clinical condition that is judged to have a >50% chance of mortality during or soon after critical illness
Any other clinical condition that is judged to have a >30% chance of mortality during or soon after critical illness Explanatory Note:
Criterion D (progressive, end-stage illness marked by severe cognitive impairment) and criterion J (clinical frailty due to a progressive illness or generalized deterioration of health status) would be relevant ineligibility criteria for progressive and life-limiting conditions, such as Alzheimers disease or high level of multi-morbidity, which are known to be associated with a higher risk of mortality during or soon after an episode of critical illness.10 By contrast, criterion D and criterion J would not be ineligibility criteria for non-progressive conditions with cognitive impairment, clinical frailty, or dependency, such as developmental disability, spinal cord injury, or traumatic brain injury, because these are not necessarily associated with a higher risk of death during or soon after an episode of critical illness. To be clear, the clinical focus of critical care triage decision in major surge should be on the prognosis (predicted mortality) of the individual in question and not any particular demography, disease or disability. The clinical criteria are not intended to exclude nor to deprioritize all people with clinical frailty, multimorbidity, and cognitive impairment or all individuals with a given diagnosis.

Additional Considerations at Level 3:
At Level 3, only patients with the lowest risk of death in the near future would be eligible for critical care. However, if demand for critical care continues to exceed available resources, there may come a point where there may be little clinical evidence to guide triage decisions on the basis of medical utility.14 As a result, triage decisions must appeal to fairness.

Fairness would suggest that those patients who are already receiving critical care and are benefiting from it should continue to receive it. In other words, demand for critical care from new patients does not justify withdrawing life-sustaining measures from admitted patients with a similar prospect of benefitting from them. Decisions to withdraw life-sustaining measures from someone already admitted to critical care should be driven by clinical considerations. In practice, this would involve a frequent reassessment of admitted patients by the clinical team for any indication that the patient is no longer responding to treatment, or where the patients clinical trajectory suggests that their chances of recovery have substantially worsened from when they were admitted. It is important to reiterate that a decision to withdraw critical care should be based solely on clinical considerations, integrating all relevant information, and not on any demography, disease, or disability, or other factors. As with all triage decisions, such patients should be referred for a second opinion to confirm the assessment (i.e., that the persons chance of survival is poor).

Fairness would also suggest that, when an opportunity emerges to admit a new patient into critical care and a triage decision must be made between multiple patients who cannot be distinguished on the basis of medical utility (i.e., all meet an eligibility criterion and do not meet any ineligibility criteria), then a system of random selection among eligible and not-yet-admitted patients should be implemented. Random selection upholds the principle of fairness in situations where it is not possible to rely on medical utility to make clinical decisions.15 It mitigates against the potential of explicit or unconscious bias in decision-making and demonstrates the value of humility when uncertainty is high. Random selection also has other advantages as a decision-making strategy in the context of an overwhelming surge of critically ill patients: it is already a well-established practice for making decisions in situations of uncertainty or equipoise in medicine (e.g., randomized controlled trials); it reduces the moral and psychological burden of deciding who receives life-saving treatment, which can lead to moral injury and burnout after repeated cases; it is efficient when decisions need to be made rapidly; and it allows for procedural transparency and accountability. When decisions are made through random selection, this should be done with one or more witnesses, and a record of the outcome of the process of randomization should be documented.

Critical Care Triage Approach:
Critical care triage for major surge in a pandemic should be well-coordinated, consistent, predictable, and responsive to an evolving pandemic context.16 A three-level triage approach is proposed. A proportionate response to increasing levels of demand on scarce resources is essential. As system pressures increase, triage criteria become proportionately more stringent. The degree of triage should be calibrated to the degree of demand in order to limit the possibility that a patient will be denied critical care resources unnecessarily.

In the current COVID-19 pandemic context, the decision to initiate critical care triage for major surge would fall under the authority of, and would be made by, the provincial Critical Care Command Centre with full situational awareness of existing critical care resources and demands. Each hospital should be aware of the precise number of critically ill and mechanically-ventilated patients they can accommodate with their resources (including consumables), staff, and space. The timing and degree of the surge in demand is likely to be variable in different institutions and regions, so as one hospital or region approaches their maximum capacity, significant efforts should be taken to transfer patients to, or resources from, hospitals with lower occupancy to ensure that all resources are maximally used prior to the initiation of critical care triage for major surge. This will also reduce the chances that some patients will be denied critical care resources that they would have received had they been in another hospital. When all hospitals in a region are near their capacity, or when transportation resources are no longer able to move patients to hospitals with lower occupancy, Provincial and Regional Critical Care Command Centres should clearly inform these hospitals that a major surge scenario is impending. Major surge in demand may be intermittent, requiring a regular review (e.g., every 12 hours) of occupancy to determine whether the triage protocol is still required or whether hospitals can decrease the level of triage.

The prospect of a major surge in demand for critical care should prompt discussions with patients or their substitute decision-maker to identify and document patient wishes and values and ensure current treatment plans are up to date. It is also appropriate for physicians and other healthcare providers to engage in advance care planning conversations with patients/SDMs in hospital or in community settings to explore the patients wishes and values and to clarity the treatment goals and options available if the patient were to become acutely or critically ill. Regardless of triage decisions at any level, all efforts should be made to treat patients supportively and to ensure all patients receive the right care, in the right place, at the right time to the greatest extent possible during the COVID pandemic.

If a major surge is imminent (but before level 1 triage is initiated), all patients who are currently receiving critical care resources should be reviewed, and those who would be excluded under a level 1 triage scenario should be identified in advance and they (or their substitute decision-makers) should be informed of the situation if possible. When a level 1 triage scenario has been initiated, these patients should begin to have life-sustaining measures withdrawn and be transferred to non-critical care beds, with appropriate palliative measures initiated (or other measures in accordance with the patients values, beliefs, and wishes). All patients need not have life-sustaining measures withdrawn at once. Rather, life-sustaining measures should be withdrawn sequentially starting with those patients who meet the greatest number of ineligibility criteria. Withdrawal of life-sustaining measures should be in proportion to demand and operational capacities. Each hospital should communicate the number of patients who would no longer receive critical care in a level 1 scenario to their Regional Critical Care Command Centre to assist with planning and coordination provincially. All new patients who develop critical illness in a level 1 triage scenario should be assessed against the level 1 criteria before receiving critical care resources.

If major surge escalates, all patients in their critical care beds who would be ineligible for critical care under a level 2 triage scenario should be identified and they (or their substitute decision-makers) should be informed that level 2 triage is imminent. The regional critical care command centre should continue to coordinate transportation of patients to optimize the utilization of all critical care resources before initiating a level 2 triage. If a level 2 triage scenario is initiated, hospitals should proceed in a similar manner to the steps described above. All new patients who develop critical illness after a level 2 triage scenario should be assessed against the level 2 criteria before receiving critical care resources. Hospitals should then prepare for a level 3 triage scenario, similar to the previous steps. Based on the principle of proportionality, the number of patients denied access to or withdrawn from critical care should not be more than the incoming demand requires based on the current and expected surge of critically ill patients. This means that triage levels should go up or down in relation to demand and should continue only as long as the major surge persists to minimize mortality and morbidity.

A. Triage in Hospital: Suggestions for Implementation
The triage approach recommended in this document may be implemented differently depending on the resources available to the hospital and the region in question, which may fluctuate over the course of the pandemic. Appreciating that the implementation of this approach will vary to some degree based on available human resources and other contextual factors at individual institutions, the following suggestions offer a starting point for local and regional planning.

1. Triage Process
In general, the triage process comprises four steps. This process represents an ideal, which may need to be modified to suit specific settings.

Step 1: Clarify Patient Goals of Care and Inform Patient/Family of Change in Standard of Care Due to Major Surge
In general, regardless of whether or not triage has been implemented, when a patient is admitted to hospital or assessed in the Emergency Department, the most responsible physician/most responsible provider (MRP) should explore the patients goals and aim to develop a plan of care that reflects those goals and respects the limitations of medical care. If the patient indicates a preference to receive life-sustaining measures in the event of clinical deterioration, but the MRP feels that this is not appropriate given the patients medical condition, the MRP should explain this and propose a less aggressive treatment approach. If a person expresses a desire not to receive life-sustaining treatment in the event of clinical deterioration, this should be recorded in the chart and the patient should not be referred for critical care. At this time, the patient or substitute decision-maker should also be informed that the hospital is moving towards triage and that the standard of care may be altered, including strict allocation of critical care based on the approach recommended in this document.

Step 2: Assess Patient Against Triage Criteria
Once the triage approach has been implemented, if an admitted patient meets (or is close to meeting) the eligibility criteria, provided that there is no order to withhold life-sustaining measures, the MRP should assess the patient to determine whether they meet the eligibility criteria and whether they meet any of the ineligibility criteria for the level of triage. A second physician, who would ideally be a member of the critical care team, rapid response team (RRT), or a designated triage physician, should verify whether the patient meets the eligibility and/or ineligibility criteria. Ideally, disagreements about eligibility/ineligibility criteria should be resolved by consensus of the two physicians who assessed the patient if possible. The patients triage assessment should be documented in the health record.

Step 3: Referral of Case to Triage Team
Following this assessment, the MRP should communicate the assessment to the hospital or regional triage team, who will review the decision. The triage team may also help to resolve any disagreement about whether the patient meets eligibility/ineligibility criteria. The triage team should confirm that, under the triage approach, admission to critical care will or will not be provided based on current critical care capacity. For clarity, the MRP has the clinical responsibility for determining whether the patient meets the eligibility and ineligibility criteria. The health care system, through the implementation of the triage approach, takes responsibility for determining that they cannot offer admission to critical care. The triage team is ultimately responsible for making decisions regarding the allocation of critical care resources according to the approved criteria for the appropriate level of surge (Level 1, 2, 3).

Step 4: Communication with Patients and Family/Substitute Decision-Maker(s)
The MRP will communicate the outcome of the triage decision (i.e., whether or not the patient will be admitted to critical care) to the patient or substitute decision-maker (see Appendix B for suggested language to disclose a triage decision), with support from other members of the interprofessional team (social work, spiritual care, etc.). The MRP will document the decision in the patients medical record. The MRP should continue to offer all other indicated medical treatments and write comfort orders to ensure that the patient receives appropriate palliative care (see Appendix D for suggested comfort medication orders).

Additional suggestions for implementation at the institutional level, including policies, tools, descriptions of roles and responsibilities of triage teams, and communications suggestions, have been developed by Hamilton Health Sciences and can be accessed here: https://macdrop.mcmaster.ca/s/PoGMyw848Wipz88

2. Triage Team
Triage teams have been recommended in other published guidance to support consistent, evidence-based and accountable decisions about the use of critical care resources in the context of a pandemic surge.17 Triage teams may be institution-based or regional. Suggestions for triage team roles and responsibilities can be found here: https://macdrop.mcmaster.ca/s/PoGMyw848Wipz88.

3. Patient and Public Communication
In the context of the COVID-19 pandemic, transparency is key to maintaining patient and public trust. This includes being transparent about why critical care triage may be needed in major surge, how triage decisions will be made and by whom, when an institution or region has initiated critical care triage for major surge, and how patients will be supported during this difficult time. Patient and public-facing communication materials (e.g., signage, information sheets) will be essential. Suggestions for how to communicate triage decisions to patients (or their substitute decision-maker) can be found in Appendix E. To ensure effective communication, some patients may require accommodated communication (e.g., plain language, use of communication devices) and access to interpretation services. Attendant care workers or other personal support persons may play essential roles in informing individual treatment plans and advising on an individual patients clinical history and functional status. This may require accommodation within institutional visitor policies to the extent possible to comply with infection control guidelines.

4. Clinician Support
Critical care triage in a major surge will entail a significant cognitive, psychological, and moral burden on clinicians and underlines the need to support and prepare critical care clinicians for major surge in advance. Clinical guidance, including explicit triage criteria, institutional supports, such as triage teams, and assurance of legal protection will go some distance to support clinicians. Additional clinician supports identified in stakeholder feedback include: i) education and training about the critical care triage approach for critical care teams, ii) creation of decision support tools, e.g., translating the critical care triage criteria into an accessible format for ease of use in clinical practice, iii) guidelines for emergency department staff and EMS, and iv) general information for clinicians in other clinical areas and settings about the critical care triage approach to foster effective collaboration among clinical teams.

5. Dispute Resolution
Disagreement amongst clinicians may arise regarding the eligibility/ineligibility of a patient for critical care. Although consensus-based decision-making is ideal, a mechanism for resolving disagreement may be needed. Options for dispute resolution may include additional consultation with appropriate medical specialists or discussion with the Triage Team. Where a patient/family disagrees with the outcome of a triage decision, the Triage Team may assist the MRP in communicating the rationale for their resource allocation decision, and the process by which triage decisions are made. Other members of the interprofessional team (e.g., social work, spiritual care, patient experience specialists, bioethicist, etc.) may also assist in supporting patients and families who are distressed by the outcome of the triage process. Given the context of critical care triage in a major surge, where an overwhelming number of critically ill patients must be assessed rapidly in a dynamic and over-taxed environment, a formal process for patients and families to appeal triage decisions may not be feasible or appropriate (e.g., if critical care is contrary to the patients wishes). Due process considerations (e.g., transparency about reasons for triage decisions) are especially important in this context. Hospitals should plan for how they might proactively prepare patients and families for possible outcomes of the triage process as well as how they would respond transparently and compassionately to patient or family concerns should these arise.

Concluding Recommendations:
The COVID-19 pandemic presents new challenges for the Ontario health system about how health resources will be used to meet patient and population needs. At time of writing, there is limited guidance for health systems about how a major surge in demand for critical care should be managed in a pandemic context. This document offers recommendations to inform the creation of a critical care triage approach in Ontario based on clinical and ethical considerations in the event of a major surge in demand for critical care in the COVID-19 pandemic. Given the novelty of this approach and its broader significance for all Ontarians, we offer two additional recommendations related to next steps for development of this work.

1. Communicating with the public: Transparency is key to maintaining public trust during a pandemic. Years of risk and outbreak communication science show that the public will support measures when transparency is the default setting for governments dealing with public health emergencies and when considerations of fairness have been addressed. In the context of critical care triage in a pandemic, this includes being transparent about: i) the need for these triage criteria and the accompanying legal powers needed to implement them in a public health emergency; ii) the ethical basis for the triage criteria (i.e., minimizing morbidity and mortality); and iii) the process through which the criteria were developed (i.e., based on consultations with a broad array of stakeholders). It is therefore recommended that this document be made public available and that any communication includes the ethical basis and process for the development of these recommendations.

2. Monitoring and iterative review of the approach: Given limited experience with critical care triage for major surge, it will be important to monitor, review and revise the approach to ensure it is achieving the aim for which it is intended (i.e., to maximize survival and recovery from critical illness of as many patients as possible within critical care resources in a major surge) and is not leading to unintended adverse consequences. This underlines the need for clear and consistent documentation practices across hospitals, the prospective capture of relevant clinical and other data about triage decisions, and a mechanism for mid-course correction that is nimble, transparent and accountable. This aligns closely with other calls for equity-related data collection to understand the impact of pandemic interventions on patients, particularly those who are marginalized in health care and may face systemic disadvantage for other reasons, and to mitigate negative impacts to the extent possible within the pandemic context.

References
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13. Zhou F, Yu T, Du R, et al. Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. Lancet. 2020.
14. Christian MD, Toltzis P, Kanter RK, et al. Treatment and triage recommendations for pediatric emergency mass critical care. Pediatr Crit Care Med. 2011;12(6 Suppl):S109-119.
15. Antommaria AH, Powell T, Miller JE, Christian MD, Task Force for Pediatric Emergency Mass Critical C. Ethical issues in pediatric emergency mass critical care. Pediatr Crit Care Med. 2011;12(6 Suppl):S163-168.
16. Gall C, Wetzel R, Kolker A, Kanter RK, Toltzis P. Pediatric Triage in a Severe Pandemic: Maximizing Survival by Establishing Triage Thresholds. Crit Care Med. 2016;44(9):1762-1768.
17. Christian MD, Toltzis P, Kanter RK, Burkle FM, Jr., Vernon DD, Kissoon N. Treatment and triage recommendations for pediatric emergency mass critical care. Pediatr Crit Care Med. 2011;12(6 Suppl):S109-119.
18. Christian MD, Hawryluck L, Wax RS, et al. Development of a triage protocol for critical care during an influenza pandemic. CMAJ. 2006;175(11):1377-1381.
19. Azoulay E, Soares M, Darmon M, Benoit D, Pastores S, Afessa B. Intensive care of the cancer patient: recent achievements and remaining challenges. Ann Intensive Care. 2011;1(1):5.
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21. Karvellas CJ, Garcia-Lopez E, Fernandez J, et al. Dynamic Prognostication in Critically Ill Cirrhotic Patients With Multiorgan Failure in ICUs in Europe and North America: A Multicenter Analysis. Crit Care Med. 2018;46(11):1783-1791.
22. Kylhammar D, Kjellstrom B, Hjalmarsson C, et al. A comprehensive risk stratification at early follow-up determines prognosis in pulmonary arterial hypertension. Eur Heart J. 2018;39(47):4175-4181.
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26. Fernando SM, McIsaac DI, Rochwerg B, et al. Frailty and associated outcomes and resource utilization following in-hospital cardiac arrest. Resuscitation. 2020;146:138-144.
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Appendix A. Backgrounder: Development of the Recommendations

This document was developed by the Bioethics Table based on a review of the literature on critical care triage in a pandemic, consultation with clinical experts, and feedback from health system stakeholders. Feedback has been addressed to the greatest extent possible in this current version where appropriate. This recommendations document is a green document within the overall 2020 COVID pandemic response in Ontario. It is acknowledged that the process for developing an approach to critical care triage in the context of a major surge in demand should remain sensitive and responsive to changing conditions and emerging evidence, and as such, should be on-going.

Development of Critical Care Triage Criteria
Early work on pandemic critical care triage was led by researchers in Ontario following the SARS outbreak and in developing provincial and national pandemic plans in the years leading up to the H1N1 pandemic. 9 At that time, critical care triage criteria using sequential organ failure assessment (SOFA) scores, which help to predict clinical outcomes (acuity and morality risk) of critically ill patients, was proposed. Over the last decade, a number of clinical developments, including novel therapies and new research evidence, have precipitated the need for an updated approach to critical care triage criteria in a pandemic context.

Below we outline the key considerations contributing to the updated critical care triage criteria outlined in this document:
* With greater experience, most experts no longer recommend the use of SOFA scores to prioritize patients in a pandemic context because the correlation with outcomes is not as strong as was previously believed. Many young patients are admitted with severe illness but ultimately survive, and the severity of acute illness does not imply greater or lower utility of treatment.
* Advances in clinical management of cancer mean that some individuals with metastatic cancer, who previously would have not benefited from intensive care support, have a reasonable expectation of surviving an ICU admission and living for years.19,20
* Critical care medicine is better able to prognosticate for patients with some types of chronic organ disease who develop critical illness, such as people with chronic liver disease using the Acute on Chronic Liver Failure (ACLF) grading system.21
* Organ donation has become more common and may offer substantial life prolongation for people with organ failure. Selected patients who are admitted to the ICU and assigned the highest priority for organ transplantation have a reasonably high expectation of receiving an organ and surviving to discharge. This would mean that anyone who is immediately postoperative from an organ transplant should not be denied ICU admission. However, patients who are being referred for ICU admission while awaiting an organ should only be admitted if organ transplantation is still proceeding (and this may not be the case if people who would be eligible for organ donation after neurological or circulatory death are not being admitted to the ICU) and they are assigned the highest priority for an organ transplant
* Critical care medicine has better prognostication tools for neurological injury, including: o For subarachnoid hemorrhage, the WFNS system.22
o For intracerebral hemorrhage, the ICH score.23
o For acute ischemic stroke, the NIH Stroke Scale.24
o For moderate or severe traumatic brain injury, the IMPACT score.25
* Clinical research indicates that age may be less relevant to predicting mortality than frailty, multimorbidity, or neurodegenerative disease.10,26,27 The Clinical Frailty Score is currently in widespread use throughout the healthcare system.
* There is also a greater appreciation of the concept of chronic critical illness, and the ability to identify ICU patients who have survived their acute illness but who are still requiring mechanical ventilation after 2 weeks and very unlikely to survive to a year using predictive tools such as the ProVent score.28-30

The critical care triage criteria were developed iteratively in consultation with Canadian medical experts representing specialties including critical care, emergency medicine, neurology, geriatrics, oncology, cardiology, nephrology, respirology, neurosurgery, hepatology, palliative care, and internal medicine in March and April 2020.

Appendix B: The Ontario Human Rights Code Prohibited Grounds of Discrimination

The Ontario Human Rights Code recognizes that discrimination occurs most often because of a person’s membership in a particular group in society. None of the grounds below should influence the allocation of critical care or medical resources; triage decisions should be based solely on the criteria included in this document.

The Code prohibits actions that discriminate against people based on a protected ground in a protected social area. Protected grounds relevant to the health care context include: * Age
* Ancestry, colour, race
* Citizenship
* Ethnic origin
* Place of origin
* Creed
* Disability
* Family status
* Marital status (including single status)
* Gender identity, gender expression
* Sex
* Sexual orientation

Appendix C. Triage Criteria Tools

TRISS Score Calculator
https://www.mdapp.co/trauma-injury-severity-score-triss-calculator-277/

Clinical Frailty Scale (Rockwood et al)
The CFS is only considered relevant in this triage approach when used to evaluate predicted mortality due to progressive illness or generalized deterioration in health status. (Adapted from: Leonardi, Bueno, Ahrens et al. (2018). Optimised care of elderly patients with acute coronary syndrome. European Heart Journal: Acute Cardiovascular Care. 7. 204887261876162. 10.1177/2048872618761621.) For a training module on the use of CFS, go to: https://rise.articulate.com/share/deb4rT02lvONbq4AfcMNRUudcd6QMts3#/

ProVent Score- calculated at 14 days:
One point for each of Age >50, platelet count <150, requiring hemodialysis, and requiring vasopressors. An additional point is given for age >=65, for a maximum score of 5. Scores of 4-5
at 14 days suggest a mortality rate of ~90% at 1 year. Scores of 2-3 at 14 days suggest a mortality rate of 56-80% at 1 year30.

Modified ICH Score23:
One point each for age >80, infratentorial origin, volume >30mL, intraventricular extension, use of oral anticoagulants, and Glasgow Coma Score of 5-12. Two points for a GCS of 3-4. Scores of 4-7 suggest a 30-day mortality rate of >80%. Scores of 3-7 suggest a mortality rate of >60%.

The World Federation of Neurological Surgeons grading system:
A combination of Glasgow Coma Score (GCS) and the presence or absence of focal neurological deficits31. A WFNS grade 5 (GCS 3-6) is associated with a >90% probability of a poor outcome. Grades 3-4 (GCS 7-12 or GCS 13-14 AND focal neurological deficits) are associated with a >50% probability of a poor outcome. Grade 2 (GCS 14 with no neurological deficits) is associated with a ~30% probability of a poor outcome.

National Institute of Health Stroke Scale (NIHSS): score 0-7 is associated with a 30-day mortality of 4.2%; 8-13 with a 30d mortality of 13.9%; 14-21 with a 30d mortality of 31.6%; and 22-42 with a 30d mortality of 53.5%24:.

The IMPACT Score25 predicts outcome at 6-months based on multiple demographic, clinical and radiographical factors using the calculator found at http://www.tbi-impact.org/?p=impact/calc

The ACLF grading system is based on the number of organ systems failing at the time of admission in a patient with chronic liver disease. Patients with more than 2 organ systems failing on presentation (ACLF Grades 2 and 3) have an >=80% risk of mortality at 6 months32. Those with ACLF Grade 1 have an approximately 50% mortality at 6 months32; ACLF grade 1 is defined as having chronic liver failure plus ONE of the following: * Creatinine >177 umol/L (2.0 mg/dL)
* Creatinine >132 umol/L (1.5 mg/dL) AND Hepatic encephalopathy grade 3-4
* Creatinine >132 umol/L (1.5 mg/dL) OR Hepatic encephalopathy grade 1-2 AND ONE OF: o Bilirbin >200umol/L (12mg/dL)
o INR >2.5
o pressor support required
o PaO2/FiO2 <200

For pulmonary hypertension, the ECS/ERS High Risk Criteria are22: * WHO Class 4 symptoms
* 6MWT <165m
* NT pro-BNP >1400 ng/L
* RA area >26 cm2
* RAP >14 mmHg
* CI <2.0 L/min/m2
* SvO2 <60%

Appendix D. Suggested order set for symptom management for COVID-19 patients (adapted with permission from Champlain Palliative Symptom Management Medication Order Form – Long Term Care)

Symptom
Medications
Recommended starting dose
Pain/Dyspnea
Hydromorphone 2mg/ml
0.5-1.0 mg SC q30min PRN*
Nausea/Delirium
Haloperidol 5mg/ml
1 mg subcut q2hourly
PRN **
Sedation
Midazolam 5 mg/ml
1-2 mg subcut q15 minutes PRN ***
Secretions
Scopolamine 0.4 mg/ml
0.4 mg subcut q4hourly PRN
Fever
Acetaminophen 650 mg suppositories
Administer q6hourly PR PRN
Urinary retention
Foley catheter 16 Fr
Insert catheter PRN
Dry mouth
Mouth swabs
Mouth care QID and PRNPlease call MD if patient receives more than 2 PRN of hydromorphone in 4 hours.

* may start at 0.25mg in a patient who is opioid naive, frail, or elderly ** relative contraindication in Parkinsons disease
*** can use higher doses for refractory dyspnea

Appendix E. Suggested language for clinicians providing support to a patient or family member who is denied critical care in the context of a major surge in demand for critical care resources

Template 1.
Normally, when somebody develops critical illness, the medical team would offer them intensive care (a combination of medications and machines to support their vital organs), provided that the medical team feels that they had a reasonable chance of survival. However, because of the COVID outbreak, we are currently unable to offer intensive care to everyone who is critically ill. As a result, our hospital is working under triage guidelines, which means that we are only offering intensive care to those who are most likely to be able to survive and recover from their critical illness. You probably have heard about this in the news all hospitals in the region are working under these guidelines.

I regret to inform you that we are unable to offer you intensive care treatments at this time, as a result of the triage guidelines. Because of your medical condition, the likelihood that you would survive even with intensive care is considered to be too low for us to offer intensive care. The team has made this decision based on the following information:__________________.

I have also asked for a second opinion from a colleague, Dr. ___________, who has concurred with my assessment. You may speak with him/her if you wish.

I am deeply sorry about this situation. This is not the way we ordinarily make these decisions, and I can only imagine how you must feel right now. I want you to know that even though we cannot offer intensive care, we will do everything else that could conceivably give you a chance of recovering, including: _________.

Template 2.
As you know, you/your loved one has been receiving treatment in our Intensive Care Unit. Normally, when somebody is admitted to our Intensive Care Unit, the medical team continues to offer them intensive care until they recover, or it becomes apparent that there is no reasonable chance that they could recover even with continued intensive care. However, because of the COVID outbreak, we are currently unable to offer intensive care to everyone who is critically ill. As a result, our hospital is working under triage guidelines, which means that we are only offering to provide or continue intensive care for those who are most likely to be able to survive and recover from their critical illness. You probably have heard about this in the news all hospitals in the region are working under these guidelines.

I regret to inform you that we are unable to continue giving you/your loved one intensive care treatments at this time, as a result of the triage guidelines. Because of your medical condition, the likelihood that you would survive and recover even with continued intensive care is too low for us to offer intensive care. I have made this decision based on the following information:

[Either document the specific ineligibility criterion met by the patient, or a brief explanation for concluding that this person?s chances of survival fall below the threshold indicated in the triage document]

I have also asked for a second opinion from a colleague, Dr. ___________, who has concurred with my assessment. You may speak with him/her if you wish.

I am deeply sorry about this situation. This is not the way we ordinarily make these decisions, and I can only imagine how you must feel right now. I want you to know that even though we cannot continue intensive care, we will continue other therapies, including:

And I promise you that, no matter what, we will also use medication to treat any discomfort, such as pain or shortness of breath.We know that when we treat discomfort appropriately, this is not harmful and may actually help improve your condition. We have guidelines for how to keep people comfortable when we discontinue life-sustaining measures, and we will use those guidelines.

Text of July 7, 2020 Letter from Ontario Healths Medical Triage Protocol Committee to Disability Community Roundtable Participants

To: Roundtable Participants
From: Ontario COVID-19 Bioethics Table
Date: July 7, 2020
Re: Input on DRAFT / updated recommendations for critical care triage in the COVID-19 pandemic

Thank you for agreeing to meet with us. Attached please find updated draft recommendations for critical care triage in the COVID-19 pandemic for your review and feedback.

In March 2020, the COVID-19 Bioethics Table worked with health system clinical leaders and front-line health service providers to propose a critical care triage approach in the event of a major demand for critical care services in the COVID-19 pandemic. The draft recommendations were shared by Ontario Health with hospitals on March 28, 2020 to help hospitals to prepare for the possibility of a major surge in critical care demand and to prevent catastrophic health outcomes as have been seen in other jurisdictions. Fortunately, a major surge in demand for critical care has so far been averted.

Following the release of the March 28th version, the COVID-19 Bioethics Table sought or received stakeholder and expert feedback. Much of this feedback has been incorporated where appropriate into the revised document. We are now sharing the updated recommendations with key stakeholders to ensure the issues and concerns that have been raised have been properly addressed, to hear any additional concerns or issues that ought to be addressed, and to inform our final recommendations to Ontario Health by July 31st.

We are grateful to the Ontario Human Rights Commission for its support in co-convening this Roundtable consultation with you. Our aim is to hear your perspectives on critical care triage in a pandemic context, to gain insight into the issues and concerns relevant to the communities you represent, and to invite your input on the overall triage approach. Some questions that we hope will help frame our discussion include:

1. In the context of a major surge for critical care, the revised recommendations articulate an ethical imperative to use available resources in a manner that saves as many lives as possible, with constraints to ensure that individuals are not excluded on the basis of any particular demographic, disease, or disability independent of an individual patients prognosis. Do you agree with this approach? If not, why not, and what might you suggest as an alternative?
2. Critical care triage has the potential to perpetuate or exacerbate pre-existing health and social inequities. The proposed approach seeks to mitigate the potential impact of implicit bias and systemic discrimination on vulnerable groups to the extent possible in a pandemic. To what extent are the proposed safeguards sufficient? What additional safeguards, if any, would you recommend be put in place to prevent or mitigate this outcome?
3. What key changes, if any, to the document or overall approach would you recommend? What would you not like to see changed?
4. Are there any other comments/feedback on the critical care triage recommendations you would like to share?
5. Looking forward, are there any other issues/concerns relevant to the pandemic response that you think the Bioethics Table should be aware of as it contributes to planning for potential Wave 2 of the COVID-19 pandemic in Fall and beyond?

The Bioethics Table is happy to receive additional thoughts or input you would like to share following the Roundtable. Please send your comments to us via email (jcb.director@utoronto.ca) by Monday, July 20 so that they can be considered in the recommendations we will be making to Ontario Health.

We look forward to next weeks conversation.

Sincerely,

Jennifer Gibson and Max Smith
Co-Chairs, Bioethics Table

Text of June 15, 2020 Letter from Ontario Health to the Ontario Human Rights Commission

Ontario Health
525 University Avenue, 5th Floor, Toronto ON, M5G 2L3

June 15, 2020

Raj Dhir?Executive Director?Ontario Human Rights Commission 180 Dundas Street West, 9th Floor Toronto, ON?M7A 2G5 Dear Mr. Dhir:

RE: COVID-19 triage protocol, data collection and essential support persons

Thank-you for your letter dated June 4, 2020 written on behalf of the Ontario Human Rights Commission (OHRC). We extend the same wishes for safety and good health to you and your team on this journey through the COVID-19 pandemic.

Ontario Health welcomes your letter and is pleased to have this opportunity to share our views on the issues you raised both at this time during the pandemic, but also at this time in Ontario Healths evolution in the health sector. Specifically, on behalf of Ontario Health, I want to confirm our commitment to recognizing the human rights of all Ontarians and to ensure that as much as possible, the principles of inclusion, diversity and equity are reflected in all of what Ontario Health does. This means both internally at Ontario Health as it matures and integrates the business of numerous former crown agencies, but also externally in how it exercises its mandate in the health system.

As you may know, we have a very important role to play supporting the Ministry of Health as part of their broader health system strategies through the mandate that has been established for us under the Connecting Care Act, 2019. COVID-19 elevated the importance of this role by shining a light on the importance of ensuring there is coordinated communication, collaboration and commitment to patients, residents, health outcomes and front-line workers from the many different health system providers.

From this vantage point, we view Ontario Health as having a very important and ongoing role to play to demonstrate its commitment to observing fundamental human rights for all Ontarians including those in racialized communities, people experiencing poverty, people with disabilities, older people and other Code-protected groups.

While I will defer to the Minister of Health to respond to you on behalf of the Government and the health system more broadly, it is important for Ontario Health to outline our perspective in the four areas you have written about:

1. Immediately and publicly rescind Ontario Healths March 2020 Clinical Triage Protocol for Major Surge in COVID-19 Pandemic and undertake meaningful consultation on a new protocol.

Working with health system clinical leaders and front-line health service providers, a draft Clinical Triage Protocol for Major Surge in COVID-19 (Triage Protocol) was shared by the COVID-19 Bioethics Table in March 2020 as a clinical response to avert catastrophic health outcomes from COVID-19. Given the complexity of issues it presented at the time, the unprecedented reallocation and shift of resources in the health system to respond to COVID-19 and the uncertainties surrounding the virus itself, the Triage Protocol remains in draft. That said, it is a product of much consultation by the COVID-19 Bioethics Table (that works with the Critical Care Table) and with clinical and ethical leaders, following best practices in those areas from other jurisdictions who bravely fought COVID-19 before Ontario. While COVID-19 has unfortunately taken a tragic toll in certain parts of our health system, we are thankful that the need to apply the Triage Protocol has so far been averted as a result of our health system response. To my knowledge, the triage recommendations in the Triage Protocol have not yet been applied in Ontario.

At this time in the pandemic with our numbers of confirmed COVID cases decreasing, we have the opportunity to reflect on all aspects of the response, including the draft Triage Protocol. The intent of the COVID-19 Bioethics Table is to continue to seek feedback, which so far, has generated very helpful comments from stakeholders, including the ones you mention. The Bioethics Table is taking the thoughtful input received so far and including it in an updated draft which they are intending to share with the stakeholders they have consulted with – to ensure the issues and concerns that have been raised are properly addressed and before any further steps are taken on it (see Appendix with list of stakeholders). If there is a stakeholder group that has reached out to your office that is not on this list, please let us know, we would be happy to connect the Bioethics Table with them. It is our understanding that the Ministry is supportive of this direction. Our goal is to have a final document by the end of July, or to rescind it.

2. Quickly develop and release a plan for collecting disaggregated sociodemographic data on the response to COVID-19.

Early in the pandemic, Ontario Health consulted with experts in health equity and the collection of sociodemographic data to gather their advice on how best to understand the impact of COVID-19 on vulnerable populations. These experts included leaders from the Wellesley Institute, the Alliance for Healthier Communities, the University of Toronto, the Health Commons Solutions Lab, and the Upstream Lab. The advice we received had three components: (1) use existing Ontario data at the neighbourhood level to track and report on disparities between communities; (2) begin collection of individual sociodemographic data through the public health information system; (3) begin a longer-term solution to collect sociodemographic information through the OHIP registration form.

The data we routinely report to the Health Command Table on COVID-19 on incidence and prevalence includes information on disparities between neighbourhoods in Ontario using data from the Ontario Marginalization Index (i.e. educational attainment, income, unemployment, quality of housing and family structure characteristics, recent immigration, visible minority resident). This information is also available publicly at howsmyflattening.ca.

We understand from the Ministry of Health that the collection of race and ethnicity-based data at the individual level for COVID-19 is expected to begin within the next few?weeks. Public health case investigators will ask individuals newly diagnosed with COVID for race-based information as part of follow up and case management. The Ministry has worked with many stakeholder organizations and communities to advance this effort and is working with Public Health Ontario and the public health units to facilitate roll out of this important information.

To ensure that sociodemographic data collection at the individual level is sustainable and extends beyond this pandemic to other health issues and conditions, Ontario Health fully supports the feasibility of collecting this information through the OHIP registration form and we will await additional guidance from the Ministry.

3. Provide clear provincial direction on the duty to accommodate people with disabilities who need to access essential support persons(s) while receiving health services during the pandemic.

As you know, Ontario Health does not provide direct, front-line healthcare to patients. Ontario Health, however, is fully committed to accommodating people with disabilities and is able to support health service providers in fulfilling their important duties on the frontlines. While Ontario Health does not have the power or authority to direct health service providers in how they discharge their duties, we can play an active and supporting role to the Minister of Health in any directions to the broader health system. We will do our best to convey this message informally to our health system partners subject to any further formal advice or directions from the Ministry.

4. Consult and involve representatives of vulnerable groups and other human rights experts.

As mentioned earlier, Ontario Health continues to be in its formative days, having assumed six (6) existing corporations through Minister Transfer Orders since December 2019. While I have comfort that all of these former entities and their business practices were committed to protecting the human rights of vulnerable persons, the integration of these businesses presents Ontario Health with the opportunity to consider how we can build on their success and be the leader in this area both with our employees and the health system as a whole.

To this end, Ontario Health is already in the process of retaining a human rights expert who can provide meaningful guidance to our operations, policies and the way we interact and engage with stakeholders to observe our commitment to the Code and actively reflect the principles of diversity, equity and inclusion. We are grateful that the OHRC has offered to provide support as we embark on this process.

Once again, we thank the OHRC for reaching out at this time for the important reasons in your letter and for providing Ontario Health with the opportunity to express our shared commitment to protecting the human rights of all vulnerable populations and all Ontarians both through COVID-19 and afterwards. We look forward to hearing from the Ministry of Health in the areas noted above so we can collectively work together to achieve broadly accepted outcomes.

Regards,

ORIGINAL SIGNED BY

Matthew Anderson
President & CEO, Ontario Health

cc: Hon. Christine Elliot, Minister of Health
Hon. Merrilee Fullerton, Minister of Long-Term Care Hon. Doug Downey, Attorney General
Dr. David Williams, Chief Medical Office of Health Violetta Igneski, OHRC Commissioner Randall Arsenault, OHRC Commissioner

Appendix

Input was sought from individuals at:

The Ontario Human Rights Commission ?
ARCH Disability Law Centre ?
Muscular Dystrophy Canada ?
The Ontario Health COVID-19 Critical Care Planning Table ? Ontario critical care leads and other critical care physicians ?
The COVID-19 Bioethics Community of Practice (based at the Joint Centre for ?Bioethics and comprising all practicing bioethicists across the province working in ?health care settings) ?
Affiliated health institutions of Bioethics Table members (e.g., Health Sciences ?North, Hamilton Health Sciences, London Health Sciences, The Ottawa Hospital, ?Trillium Health Partners, etc.) ? The Wellesley Institute ?
Canadian Frailty Network ?
CorHealth

Also, input was received via letters (directed to Ontario Health or the Ministry of Health) from: ?

Ontario Hospital Association ?
Ontario Medical Association ?
Canadian Medical Protective Association ?
College of Physicians and Surgeons of Ontario ?
College of Nurses of Ontario ?
Healthcare Insurance Reciprocal of Canada ?
ARCH Disability Law Centre ?
Other disability rights organizations ?

Text of June 4, 2020 Letter from the Ontario Human Rights Code to Ontario Health

9th Floor 9e étage
180 Dundas Street West 180, rue Dundas Ouest
Toronto, ON M7A 2G5 Toronto (Ontario) M7A 2G5
Postal Code (Courier): M5G 1Z8 Code postal «courier»: M5G 1Z8

Executive Director and Directeur général et
Chief Legal Counsel avocat en chef
Ph: (416) 314-4562 Fax: (416) 325-2004

June 4, 2020

Mr. Matthew Anderson
President and CEO
Ontario Health
1075 Bay Street,
Toronto, ONM5S 2B1

Dear Mr. Anderson:

RE: COVID-19 triage protocol, data collection and essential support persons

I am writing on behalf of the Ontario Human Rights Commission (OHRC).

We hope this letter finds you and your team safe and healthy, and thank you for your ongoing efforts to address the COVID-19 pandemic.

On April 2, the OHRC released a policy statement and identified actions consistent with a human rights-based approach to managing the COVID-19 pandemic. The OHRC highlighted the need for government to:
* Provide all healthcare services related to COVID-19, including testing, triaging, treatment and possible vaccination, without stigma or discrimination
* Collect health and other human rights data on the response to the COVID-19 pandemic, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc.
* Recognize that any restrictive measures that deprive persons of their right to liberty must be carried out in accordance with the law and respect for fundamental human rights. This includes measures related to people in health and other care institutions
* Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as persons and communities affected by COVID-19, when making decisions, taking actions and allocating resources.

Over the last two months, the OHRC has met with a range of stakeholders representing racialized communities, people experiencing poverty, people with disabilities, older people and other Code-protected groups. These groups are concerned that certain aspects in the management of the COVID-19 pandemic are having a negative impact on their human rights, and have raised four immediate concerns:
1. Ontario Healths March 2020 Clinical Triage Protocol for Major Surge in COVID-19 Pandemic violates the human rights of people with disabilities, older persons and other vulnerable groups, and has created fear in their communities
2. Lack of disaggregated data collection during the COVID-19 pandemic is putting the health and well-being of Code-protected groups at heightened risk
3. Rigid visitor restrictions in care settings are resulting in unequal access to health services and a failure to accommodate people who require essential support person(s) such as a family member, friend, or support worker to communicate or meet other disability-related needs
4. Lack of meaningful consultation and involvement is negatively affecting Code-protected and other vulnerable groups during the COVID-19 pandemic.

As you may know, the OHRC has previously written to Ontario about its concerns about the Clinical Triage Protocol and the lack of disaggregated data collection. We were advised that Ontario Health would be consulting with us.

As set out below, we are aware that there may be an intention to address some of these concerns. However, to ensure full compliance with the Ontario Human Rights Code, the OHRC urges the following actions:

1. Immediately and publicly rescind Ontario Healths March 2020 Clinical Triage Protocol for Major Surge in COVID-19 Pandemic and undertake meaningful consultation on a new protocol.

Ontario Health released a Clinical Triage Protocol for Major Surge in COVID-19 Pandemic, dated March 28, 2020, to guide the use of emergency resources, such as ventilators, if Ontarios health system is overwhelmed and there is a shortage of these resources. There was no announcement to accompany the Protocol, and notwithstanding an undated letter from Ministers Elliot, Smith and Cho, which referred to it as a draft document, the OHRC has heard that health care practitioners continue to recognize the Protocol.

Stakeholders from disability rights organizations, such as ARCH Disability Law Centre, and older persons advocacy groups have voiced significant concerns that the Protocol creates stigma and fear, perpetuates historical disadvantage, and gives the impression that people with disabilities and elderly people are expendable and less worthy of protection. These groups were not consulted in the development of the Protocol. At the same time, they recognize that if the protocol is developed properly, it can serve to protect their communities. They are committed to the success of a protocol, but they need to be involved in developing it. The OHRC was able to quickly convene a consultation with these groups so we see no reason why Ontario Health cannot do the same.

The OHRC urges Ontario Health to:
a. Immediately and publicly rescind the version of the Clinical Triage Protocol for Major Surge in COVID-19 Pandemic released in March, and call on medical organizations to remove the document from their websites and not promote it as valid guidance
b. Share the revised draft version of the Protocol and commit to a public consultation with disability rights organizations, older persons advocacy groups, Indigenous, Black, racialized and other vulnerable groups.

2. Quickly develop and release a plan for collecting disaggregated socio-demographic data on the response to COVID-19.

The OHRC welcomes the Chief Medical Officer of Healths recent remarks, which were confirmed by the Minister of Health in the Legislature, that the government plans to collect socio-demographic data during the pandemic. However, the lack of a formal announcement and details on how and when data collection will roll out has created confusion.

As the OHRC said in its April 30 public statement, health and human rights experts agree that Ontario needs demographic data to effectively fight COVID-19. Strong data allows health care leaders to identify populations at heightened risk of infection or transmission, to efficiently deploy scarce health resources, and to ensure equal access to public health protections for all Ontarians.

The OHRC urges Ontario Health to:
a. Take immediate steps to clearly outline the nature and scope of the proposed collection of disaggregated socio-demographic data
b. Provide specific information on who Ontario/Ontario Health is consulting on the collection of disaggregated socio-demographic data, including, but not limited to Indigenous, Black, racialized and other vulnerable groups
c. Release a detailed and comprehensive data collection plan that includes collection mechanisms and timelines for the pandemic
d. Provide specific information on how Ontario/Ontario Health will report publicly on the data collected during the pandemic
e. Publicly commit to collecting disaggregated socio-demographic data in the health sector in a sustainable manner beyond the pandemic. This would be responsive to longstanding OHRC and stakeholder recommendations.

3. Provide clear provincial direction on the duty to accommodate people with disabilities who need to access essential support person(s) while receiving health services during the pandemic.

The government has provided guidance to care institutions about visitor access as a virus prevention measure during the COVID-19 pandemic. In its guidance, the government recommends that only essential visitors be permitted to enter facilities and provides examples of essential visitors as including, those who have a patient who is dying or very ill or a parent/guardian of an ill child or youth, a visitor of a patient undergoing surgery or a woman giving birth.

Many groups have raised concerns that care institutions are using this guidance to exclude support persons, attendants and communication assistants who provide essential disability-related accommodations. Without their essential support person, some people with disabilities cannot communicate effectively with health care providers about health concerns, make informed decisions about treatment or give or refuse consent to treatment.

The OHRC recognizes that everyones right to health includes a governments obligation to take the steps necessary for preventing, treating and controlling COVID-19. At the same time, under the Code, hospitals and other care institutions have a duty to accommodate a persons disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.

The OHRC urges Ontario Health to:
a. Provide direction to health facilities that their interpretation of essential visitor should be broad enough to include paid and unpaid support persons, attendants and communication assistants authorized by the patient who provide supports that are essential to enable a patient with a disability to access health care services and communicate effectively with health care providers.

4. Consult and involve representatives of vulnerable groups and other human rights experts.

A human rights-based approach to managing the COVID-19 pandemic requires that government, institutions and other responsible organizations consult with, and involve, Code-protected groups. Lack of meaningful consultation is negatively impacting the human rights of vulnerable groups during the COVID-19 pandemic.

The OHRC urges Ontario Health to:
a. Consult with human rights experts, representatives of vulnerable groups, and persons and communities affected by COVID-19, when developing protocols, making recommendations or decisions and taking action on managing the COVID-19 pandemic including clinical triage, data collection, restrictions on visitors to care settings and other matters. When consulting groups or needing quick advice, the OHRC is available to help facilitate discussions in a timely manner.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19, and understands that the government is working to address issues on many fronts. However, is it crucial that vulnerable peoples human rights are upheld, systematically accounted for and properly accommodated while accessing health services during the pandemic. Applying a human rights-based approach and taking these actions as soon as possible, can help limit the spread of the virus while continuing to meet Ontarios human rights obligations.

Sincerely,

Original signed by

Raj Dhir
Executive Director

cc: Hon. Christine Elliot, Minister of Health
Hon. Merrilee Fullerton, Minister of Long-Term Care
Hon. Doug Downey, Attorney General
Dr. David Williams, Chief Medical Officer of Health
Violetta Igneski, OHRC Commissioner
Randall Arsenault, OHRC Commissioner

Text of the June 4, 2020 Letter from the Ontario Human Rights Commission to the Ontario Minister of Health

9th Floor 9e étage
180 Dundas Street West 180, rue Dundas Ouest
Toronto, ON M7A 2G5 Toronto (Ontario) M7A 2G5 Postal Code (Courier): M5G 1Z8 Code postal «courier»: M5G 1Z8

Executive Director and Directeur général et
Chief Legal Counsel avocat en chef
Ph: (416) 314-4562 Fax: (416) 325-2004

June 4, 2020

Hon. Christine Elliot
Minister of Health
College Park 5th Floor, 777 Bay Street
Toronto, ON M7A 2J3
Christine.Elliott@ontario.ca

Hon. Todd Smith
Minister of Children, Community and Social Services
Macdonald Block Room M2B-88,
77 Wellesley Street West
Toronto,ON M7A 1N3
MinisterMCCSS@ontario.ca

Dear Minister Elliot and Minister Smith:

RE: COVID-19 Action Plan for Vulnerable People

I am writing on behalf of the Ontario Human Rights Commission (OHRC).

We hope this letter finds you and your team safe and healthy, and thank you for your ongoing efforts to address the COVID-19 pandemic.

The OHRC welcomes the April 23 release of the governments COVID-19 Action Plan for Vulnerable People (the Plan) as a first step toward addressing the disproportionate impact that the pandemic is having on Ontarios most vulnerable people. However, to ensure that the human rights of vulnerable people are protected in a way that is consistent with Ontarios Human Rights Code, the Plan requires expanded scope and detail, which must be done in consultation with vulnerable groups and human rights experts.

Over the past few months, the OHRC has met with stakeholders from various sectors on human rights related to the COVID-19 pandemic. We heard significant concerns about the lack of consultation with affected groups. We also heard that while the Plan mentions certain vulnerable groups, it does not capture other vulnerable communities. The Plan also lacks clarity around how prevention, treatment and control initiatives are being designed to protect and benefit the most vulnerable groups in those communities.

In our April 2 policy statement and actions for a human rights-based approach to managing the COVID-19 pandemic, the OHRC called on the government to uphold the human rights of vulnerable groups by taking the following actions:
* Anticipate, assess and address the disproportionate impact of COVID-19 and related restrictions on vulnerable groups that already disproportionately experience human rights violations
* Make sure vulnerable groups have equitable access to health care and other measures to address COVID-19, including financial and other assistance
* Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as persons and communities affected by COVID-19, when making decisions, taking actions and allocating resources.

Despite our early advice, the OHRC has not yet been invited to COVID-19 planning forums and tables. Nor have we been able to gain access to specific and timely information to better understand the human rights implications of the governments COVID-19 initiatives.

The OHRCs specific requests for more details on the implementation of the Plan and its effect on vulnerable groups have gone unanswered.

In our April 30 submission on Ontarios next Poverty Reduction Strategy, the OHRC highlighted that social and economic crises, especially a health pandemic like COVID-19, exacerbate the existing inequalities vulnerable populations already experience, such as poorer health and poverty. An inadequate response to the needs of vulnerable groups also undermines the effectiveness of Ontarios overall response to COVID-19, placing at risk everyones well-being and potentially exacerbating an anticipated second wave of the pandemic.

To effectively protect the rights of Ontarios most vulnerable people, Ontario must take immediate action to expand and implement its Plan for vulnerable groups. The OHRC urges the government to make clear, detailed and public commitments in the following areas:

1. Expand the scope of the Plan to ensure the needs of other vulnerable communities are properly addressed. Examples of communities that are currently excluded include:
* People experiencing homelessness who are not currently using the shelter system (for example, hidden homeless people and people living in encampments) * Highly mobile populations of people who use drugs
* People experiencing poverty and living in multi-generational and sometimes crowded housing while also working in high-risk settings, such as long-term care, food processing facilities and the service sector
* In-patients in mental health facilities, including in addictions and withdrawal programs and in residential treatment programs for children and youth * Frail seniors in assisted living
* Indigenous people living in urban and rural communities, and not in congregate care * Seasonal migrant workers living in shared housing facilities.

2. Provide detailed, public information on how the roll-out of expanded testing, screening, tracking and surveillance will reach and benefit high-risk and vulnerable populations. Information should include a plan for: * How many tests will be done for vulnerable groups each day * How mobile populations will be reached
* How asymptomatic people from high risk and vulnerable groups will be tested, tracked and monitored.

3. Consult and work with vulnerable groups that will be affected by the Plan by including Indigenous partners, stakeholder/advocacy groups representing vulnerable people and human rights experts, and involve them in provincial planning tables and committees.

4. Provide specific and detailed guidance to law enforcement to ensure that COVID-19 prevention measures are not implemented in a way that disproportionately targets or penalizes people who have difficulty or are unable to follow physical distancing restrictions and other requirements, such as people experiencing homelessness and people with certain types of disabilities. Guidance should also include appropriate ways to promote education and awareness.

5. Identify indicators and collect data to measure whether the Plan, including these additional actions, is benefiting high-risk and vulnerable populations.

6. Report publicly and regularly on the implementation status of the Plan, including these additional actions, in detail, including the results of the data collected to measure whether the plan is benefiting high-risk and vulnerable populations.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19, and understands that the government is working to address issues on many fronts. However, as many experts note, the spread of COVID-19 among Ontarios most vulnerable populations could prove catastrophic. Taking the recommended actions as soon as possible can help limit the spread of the virus while continuing to uphold Ontarios human rights obligations.

Sincerely,

Original signed by

Raj Dhir
Executive Director

cc: Hon. Merrilee Fullerton, Minister of Long-Term Care
Dr. David Williams, Chief Medical Officer of Health
Matthew Anderson, President and CEO of Ontario Health
Hon. Doug Downey, Attorney General
Violetta Igneski, OHRC Commissioner
Randall Arsenault, OHRC Commissioner

1 Further details regarding the process by which this document was developed can be found in Appendix A.
2 Critical Care Services Ontario. Ontarios Critical Care Surge Capacity Management Plan: Moderate Surge Response Guide Version 2.3. Government of Ontario, September 2019, p. 6.
3 An earlier version of this document was distributed to Ontario hospitals on March 28, 2020. The current document provides updated recommendations based on additional consultation and stakeholder feedback to clarify the scope and limits of critical care triage in the COVID-19 pandemic, the ethical underpinnings of the approach (including significance of human rights), the nature and purpose of the critical care triage criteria, and key considerations for implementation. It also includes recommendations for continuing consultation and stakeholder engagement.
4 Critical care services meet the needs of patients facing an immediate life-threatening health conditionspecifically, that in which vital system organs are at risk of failing. Using advanced therapeutic, monitoring and diagnostic technology, the objective of critical care is to maintain organ system functioning and improve the patients condition such that his or her underlying injury or illness can then be treated. (https://www.criticalcareontario.ca/EN/AboutUs/Pages/What-is-Critical-Care.aspx)
5 Silva DS, Gibson JL, Robertson A, et al. Priority setting of ICU resources in an influenza pandemic: a qualitative study of the Canadian public’s perspectives. BMC Public Health 2012; 12:241. https://doi.org/10.1186/1471-2458-12-241 6 Add missing refs.
7 Determining the timeframe in which death is likely to occur is challenging. Prognostication requires clinical judgement based on each patients unique clinical circumstances. To enhance prognostic certainty, the involvement of clinical judgement of more than one physician is common medical practice.
8 Skye C. Colonialism of The Curve: Indigenous Communities & Bad COVID Data. Toronto: Yellowhead Institute, Ryerson University, 2020. https://yellowheadinstitute.org/2020/05/12/colonialism-of-the-curve-indigenous-communities-and-bad-covid-data/; Nestel S. Colour-coded health care: the impact of race and racisms on Canadians health. Toronto: Wellesley Institute, 2012. http://www.wellesleyinstitute.com/wp-content/uploads/2012/02/Colour-Coded-Health-Care-Sheryl-Nestel.pdf;
9 Ontario Human Rights Commission. Policy statement on a human rights-based approach to managing the COVID-19 pandemic. 02 April 2020. Available at: http://www.ohrc.on.ca/en/policy-statement-human-rights-based-approach-managing-covid-19-pandemic. 10 Such as: age, sex, socioeconomic status, Indigenous status, race, ethnicity, sex, gender identity and expression, sexual orientation, creed, family status, marital status, geography, and home setting (including homelessness). See also Appendix B: Prohibited grounds of discrimination for a list of prohibited grounds). http://www.ohrc.on.ca/en/ontario-human-rights-code
11 Savin K, Guidry-Grimes L. Confronting disability discrimination during the pandemic. Hastings Center Report 2020; Apr 2. Available at: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/; Applying HHSs Guidance for States and Health Care Providers on Avoiding Disability-Based Discrimination in Treatment Rationing. https://dredf.org/avoiding-disability-based-discrimination-in-treatment-rationing/. Accessed April 12, 2020; Biddison D, Berkowitz KA, Courtney B, De Jong MJ, Devereaux AV, Kissoon N, Roxland BE, Sprung CL, Dichter JR, Christian MD, Powell T. Ethical considerations: care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest 2014; 146(4): e145S-e155S.
12 Christian MD, Sprung CL, King MA, Dichter JR, Kissoon N, Devereaux AV, Gomersall CD. Triage: Care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest 2014; 146(4): e-e74S; Biddison D, Berkowitz KA, Courtney B, De Jong MJ, Devereaux AV, Kissoon N, Roxland BE, Sprung CL, Dichter JR, Christian MD, Powell T. Ethical considerations: care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest 2014; 146(4): e145S-e155S; Savin K, Guidry-Grimes L. Confronting disability discrimination during the pandemic. Hastings Center Report 2020; Apr 2. Available at: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/
13 Truog RD, Mitchell C, Daley GQ. The toughest triageallocating ventilators in a pandemic. NEJM 2020; 23 March. Available at: https://www.nejm.org/doi/full/10.1056/NEJMp2005689?query=recirc_curatedRelated_article

cThe use of an acute illness score (e.g., sequential organ failure assessment (SOFA) score) would be difficult to justify given that even people with high SOFA scores may have a ~50% chance of surviving an acute viral respiratory illness.11 And if one only looks at those who do not meet any of the ineligibility criteria at levels 1-3, the survival rate would likely be even higher. It is currently unknown whether the prognosis of COVID-19 illness is similar to other viral illnesses. Early data suggests that the admission SOFA scores for non-survivors was low, and thus unhelpful for distinguishing them from survivors. 12-13 Moreover, mortality risk from acute illness does not easily translate into medical utility. It is not clear whether the greatest benefit would be seen in those with mild, moderate, or severe illness.
15 Biddison D, Berkowitz KA, Courtney B, De Jong MJ, Devereaux AV, Kissoon N, Roxland BE, Sprung CL, Dichter JR, Christian MD, Powell T. Ethical considerations: care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest 2014; 146(4): e145S-e155S.
16 Christian MD, Sprung CL, King MA, et al. Triage: care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest. 2014;146(4 Suppl):e61S-74S.

17 Christian MD, Sprung CL, King MA, Dichter JR, Kissoon N, Devereaux AV, Gomersall CD. Triage: Care of the critically ill and injured during pandemics and disasters: CHEST consensus statement. Chest 2014; 146(4): e61S-e74S; US Veterans Health Administration National Center for Healthcare Ethics. Meeting the challenge of pandemic influenza: ethical guidance for leaders and health care professionals in the Veterans Health Administration, July 2010. Available at: https://www.ethics.va.gov/docs/pandemicflu/Meeting_the_Challenge_of_Pan_Flu-Ethical_Guidance_VHA_20100701.pdf; Emanuel EJ et al. Fair Allocation of Scarce Medical Resources in the Time of Covid-19. N Engl J Med 2020 Mar 23; Truog RD, Mitchell C, Daley GQ. The toughest triageallocating ventilators in a pandemic. NEJM 2020; 23 March. Available at: https://www.nejm.org/doi/full/10.1056/NEJMp2005689?query=recirc_curatedRelated_article