National CBC News Covers Disability Discrimination Problems with Ontario's Critical Care Triage Protocol -- Protocol's Defenders Make Transparently Bogus Arguments to Defend It

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

April 20, 2021

SUMMARY

Over the past week, media coverage of disability discrimination objections to the Ford Government’s critical care triage plans has ramped up. It is fuelled by the frightening rise in new COVID-19 cases and the overload crisis in Ontario intensive care units (ICUs). Here is the latest and some reflections on the bogus arguments that have been made by the defenders of the Governments triage plans. When such obviously bogus arguments are made, it is clear they have no stronger defence to offer for their actions.

This recent news makes it clear that denial of life-saving critical care could well be going on now, a terrifying thought since the Ford Government has not approved critical care triage to begin. In the April 18, 2021 edition of CBC TV’s The National, addressed further below, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated, in the context of ambulance attendants withholding critical care:

It would be naïve for us to think that triage or changes in standard of care have not already in effect come about. (Note: Full quotation later in this Update)

This recent media reporting also confirms a serious concern we raised most recently almost two months ago, and earlier, fully one year ago. In Ontario, if critical care triage takes place, life-saving critical care may not only be refused to a patient who needs it by doctors in ICUs, but as well, by ambulance crews, long before the patient reaches the hospital, when the ambulance arrives at your home or office in response to an emergency call.

This is even more terrifying. Read on for the details.

1. The Latest Media Coverage

1. As a major step forward, on Sunday evening, April 18, 2021, CBC TV’s national newscast The National included a lengthy 7-minute report on Ontario’s critical care triage protocol and our objections to it. Seven minutes on a national newscast is a big deal. This is the news story that exposed the danger of ambulance crews, and not just doctors, denying life-saving critical care to a patient if triage is directed for Ontario. You can watch it online at any time at http://www.cbc.ca/player/play/1887030339766

Related to this, CBC News online posted a major story on this issue on April 19, 2021. We set it out below. Below you will also find reflections on both of these reports where the bogus arguments in defence of Ontario’s critical care triage plans can be found.

2. On Thursday April 15, 2021, CBC Radio Thunder Bay’s Superior Morning and CBC Radio’s Ontario Morning each included interviews with AODA Alliance Chair David Lepofsky. On Friday, April 16, 2021, he was interviewed on this topic on CBC Radio Windsor’s Windsor Morning, CBC Radio Toronto’s Metro Morning, and CBC Radio London’s London Morning. The Superior Morning interview is available on CBC’s website any time

We were invited on five of CBC’s eight morning radio programs in Ontario to address this issue. We’d be happy to oblige the other three programs! They just have to contact us at aodafeedback@gmail.com

3. On April 14, 2021, the National Post ran an article on the critical care triage issue, briefly referencing the AODA Alliance objections. We set it out below.

4. On April 13, 2021, AODA Alliance Chair David Lepofsky was interviewed on Dahlia Kurtz’s new Canada-wide program on Sirius XM Radio. We were delighted to be part of that program’s first week on the air.

5. On Tuesday, April 13, 2021, David Lepofsky was interviewed on this topic by journalist Karlene Nation on Sauga Radio in Mississauga.

6. On Monday, April 12, 2021, David Lepofsky was also interviewed on this topic on AMI Radio, a service of Accessible Media. This interview is available on AMI’s website.

Amidst all this coverage, we are eager for other media outlets to step up. For example, the Toronto Star and Global News earlier covered this issue, but have not covered it in months. We are always ready to give them any help we can.

Our objections to Ontario’s critical care triage protocol are also getting extensive attention on social media. The AODA Alliance and others have been busy tweeting on Twitter on this topic. We are getting Many retweets and supportive messages, including from people with no prior connection to the AODA Alliance. Please retweet our tweets. Follow @aodaalliance

On Twitter, some members of Doug Ford’s own Bioethics Table have echoed our concerns with the critical care triage protocol. Here are the relevant parts of two examples:

1. @LisaSchwartz224: Supporting this request from @DavidLepofsky as explained in https://healthydebate.ca/opinions/icu-triage/ @sanixto @lforman @PMCEthics @PandemicEthics
@DavidLepofsky: @BillBlair @RosieBarton @ONgov So @fordnation Doug Ford, while you’re at it, how about also pulling back your disability-discriminatory #CriticalCare #triage protocol & your Government’s refusal to meet with us to address major human disability concerns? #accessibility #OnHealth #onpoli

Alison K Thompson @PandemicEthics: The Ontario COVID-19 Science Table members and the Bioethics Table members have collectively given thousands of hour of labour pro bono to @FordNation on behalf of Ontarians. I wish I had realized earlier that we were just window dressing.

2. CBC Confirms Danger that Critical Care Triage May Be Undertaken By Ambulance Crews Before a Patient Even Reaches Hospital

The national news story that ran on the April 18, 2021 edition of CBC’s The National established for the first time that we have seen in the media that critical care triage can include emergency medical technicians (EMTs) refusing life-saving care to a patient before they even get to the hospital. We earlier warned about this danger. For example, EMTs arriving at your home to respond to a medical emergency may not resuscitate some patients. This would be appalling.

In the April 18, 2021 edition of CBC TV’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital had this exchange on camera:

CBC: Will you get into a situation where ambulance attendants are told Don’t intubate anyone?’

Dr. David Neilipovitz: Yeah, that can happen. It would be naïve for us to think that triage or changes in standard of care have not already in effect come about.

We wrote Health Minister Christine Elliott about this worrisome danger back on February 25, 2021. She and the Ford Government have never answered. Here is what we asked:

This new report also reveals that instructions may have been given or may be given to Ontario emergency services and EMTs on the possibility of not starting critical care supports in some situations for an emergency patient who needs and wants them, before reaching the hospital, if critical care triage has been directed for Ontario. This would be done so that hospitals don’t feel obligated to continue giving that patient critical care. We ask you to let us know if any such instructions have been given or have been designed or contemplated, by whom and to whom, with and with what authority? If so, we ask you to give us a copy of those instructions, past or present, and any draft instructions being considered.

3. Reflections on What is Being Said Now to defend the Ford Government’s Disability-Discriminatory Critical Care Triage Protocol and Plans

In the CBC national coverage, the defences offered for the disability discrimination in the Ontario critical care triage protocol are flat wrong.

Bogus Defence #1

The first bogus defence is for the Ontario Government’s defenders simply to deny reality. In the CBC News online story below, Dr. James Downar, author or co-author and lead defender of Ontario’s critical care triage protocol, denies there is any disability discrimination. He has earlier done this in other media. The April 19, 2021 CBC News online report states:

Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

The criteria that reference dressing or bathing oneself or going shopping, Downar said, do so only for patients with certain underlying conditions in this case, cancer or frailty syndrome who fall critically ill with COVID-19. And that’s because those kinds of assessments have been shown in research studies to be strong predictors of whether people with those underlying conditions will survive in the ICU, he said.

Dr. James Downar, who co-wrote Ontario’s ICU triage protocol, acknowledges it may have disproportionate effects on some groups. But he says it’s better than having no protocol and leaving it up to chance or vulnerable to doctors’ unconscious biases. (Ottawa Hospital Research Institute/The Canadian Press)

“People with literally the same disabilities could have totally different mortality risks and thus would be treated very differently. So it’s absolutely not a triage based on disability,” Downar said.

Similarly, in the April 18, 2021 report on CBC’s The National, Dr. David Neilipovitz ICU director at the Ottawa Hospital, stated:

In my opinion, and for what it’s worth, is that disabilities do not factor in as a major factor to limit care.

Totally disproving that bogus defence, here are two illustrations of clear ways that a patient’s disability would explicitly be held against them when a doctor decides how likely the patient is to survive for one year, and hence be prioritized or deprioritized for critical care. First, the January 13, 2021 Critical Care Triage Protocol directs the use of the Clinical Frailty Scale as a tool for assessing some patients’ eligibility to be refused critical care, for patients over 65 with a progressive disease (like arthritis or multiple sclerosis). That Scale has doctors assess whether those patients, needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.

Second, for patients with cancer, the critical care triage protocol’s online calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

Whether a patient is Fully active and able to carry on all pre-disease performance without restriction
Whether a patient is Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, e.g., light housework, office work
Whether a patient is Ambulatory and capable of all selfcare but unable to carry out any work activities; up and about more than 50% of waking hours
Whether a patient is Capable of only limited selfcare; confined to bed or chair more than 50% of waking hours
Whether a patient is Completely disabled and cannot carry out any self-care; totally confined to bed or chair persons in this category receive the worst rating, for getting access to critical care.

Both those doctors, denying disability discrimination, certainly should know what the Ontario critical care triage protocol says. After all, Dr. Downar wrote or co-wrote it. Dr. David Neilipovitz heads the Ottawa Hospital Critical Care Department.

The fact that doctors will assess a patient’s likely one year mortality is no answer to this concern. The critical care triage protocol makes disability a clear criterion for assessing that one year mortality risk for some patients.

Bogus Defence #2

In the quotation above, Dr. Downar argued that there is no disability discrimination because two people with the same disability might be assessed very differently. Here is that quotation again from the April 19, 2021 CBC News online report, set out in full below:

That argument rests on the fatally flawed premise that disability discrimination only occurs if all people with the same disability are treated identically under the Ontario critical care triage protocol. That, however, is not how the Ontario Human Rights Code or the Charter of Rights’ equality disability rights provisions work.

Bogus Defence #3

It appears from the April 19, 2021 CBC News online report that Dr. Downar also tried to defend the Ontario critical care triage protocol by stating that it does not discriminate based on disability, because patients with certain named stable disabilities are not subject to assessment for critical care triage by considering if they can perform 11 activities of daily living without assistance. Repeating an argument he has made elsewhere in the media, (but not explicitly using his name here), the CBC report states:

Protocols in both Ontario and Quebec have explicit language that doctors are not to rely on someone’s disability in assessing their mortality risk. A frailty syndrome assessment is excluded, for instance, for people with “long-term disabilities (e.g. cerebral palsy), learning disabilities or autism.”

What that bogus argument boils down to is this: The critical care triage protocol does not discriminate against all people with disabilities. It only discriminates against some people with disabilities. Therefore, it does not discriminate against anyone based on disability.

That, of course, is no defence to disability discrimination. It is disability discrimination to discriminate against some patients because of some disabilities, without discriminating as well because of some other disabilities.

Compare this bogus argument to the context of racial discrimination. If a company refused to hire black people, it would be no defence to a claim of racial discrimination that the companied did hire some people from other racialized communities and only held a person’s racialized situation against them if their skin is black.

Bogus Defence #4

The fourth bogus defence put forward in this media reporting is that the Ontario critical care triage protocol is better than having no protocol at all. The online April 19, 2021 CBC article states:

Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases or an even cruder determination: first come, first served.

This bogus defence presupposes that the only way to do critical care triage is with the disability discrimination spelled out in the January 13, 2021 Critical Care Triage Protocol, and with no due process for patients. We do not agree. It is now clear that fully six members of The Government’s external advisory Bioethics Table also disagree with the general position presented in defence of the Ontario critical care triage protocol.

If those designing, approving and defending this protocol have so impoverished an approach to human rights, the Ford Government needs to find new people to design the triage protocol and plan who have a better approach.

4. Reminder Register to Attend Tonight’s Virtual Public Forum on Addressing the Disability Discrimination in Ontario’s Critical Care Triage Protocol and Plan

Please register to join us and other concerned disability organizations tonight at 7:30 p.m. for a virtual information session to learn more about Ontario’s triage protocol and why it matters. LEARN MORE AND REGISTER NOW! (ASL and closed captioning will be available)

For background on the AODA Alliance’s efforts to battle the danger of disability discrimination in critical care triage, visit the AODA Alliance website’s health care page.

MORE DETAILS

CBC News Online April 19, 2021

Originally posted at https://www.cbc.ca/news/health/covid-ontario-icu-triage-1.5992188

As ICUs fill up, doctors confront grim choice of who gets life-saving care

Ontario’s protocol for critical-care triage worries disability rights advocates Zach Dubinsky, Terence McKenna, Joseph Loiero, Albert Leung

A health-care worker cares for a COVID-19 patient in the ICU at Toronto’s Humber River Hospital. A number of Ontario medical professionals fear that they may be forced to start triaging ICU patients within weeks. (Nathan Denette/The Canadian Press)
Hospitals are shifting critically ill patients around, looking for any empty bed. Nurses and doctors are putting in exhaustion-defying amounts of overtime. Some provinces are opening new intensive care unit capacity.

But it may not be enough to stave off a point no one wants to reach in the pandemic when only a handful of ICU beds remain but a greater number of patients need those spots.

That point is drawing perilously close in Ontario and possibly parts of Saskatchewan, even as some other provinces don’t have a single hospitalized COVID-19 patient.

It means some of the hardest decisions health-care providers ever face will have to be made: who gets potentially life-saving care and who doesn’t.

“There are people who could be saved by critical care who aren’t going to get it,” said Dr. James Downar, a palliative and critical-care physician in Ottawa who co-wrote Ontario’s ICU protocol for when that awful moment strikes.

He hopes the protocol won’t be needed.

Ontario’s latest COVID-19 modelling ‘catastrophic,’ doctor says
Families torn apart. Workers at a breaking point. Inside a hospital system hit hard by 3rd wave of COVID-19
“It’s a difficult, difficult job to make such a call … and I hope it doesn’t happen.”

Decisions about how to ration life-saving care are never easy, Downar said and this one has been not only arduous but controversial. Bioethicists and human rights groups have raised concerns that Ontario’s protocol discriminates against people with disabilities.

Downar says any protocol is better than none, which could leave decisions vulnerable to doctors’ unconscious biases or an even cruder determination: first come, first served.

Level 1 triage could come in weeks
Ontario’s protocol is a work in progress and hasn’t officially been published, but the latest 32-page draft to be widely circulated among doctors looks like this:

Two physicians will independently assess any patient needing an ICU bed for their “short-term mortality risk” or STMR their likelihood of death within 12 months.
At the lowest level of triage, Level 1, anyone with short-term mortality risk greater than 80 per cent is de-prioritized for an ICU bed.
If the COVID-19 situation worsens and triage moves to Level 2, anyone with an STMR over 50 per cent is “not prioritized for critical care.”
If ICUs get even more strained and go to Level 3, only people with a less than 30 per cent risk of dying within the next year would be prioritized for a spot.
Level 1 triage might be reached within Ontario in the next two weeks if current trends continue.

Quebec has a similar ICU protocol in place, inspired by Ontario’s, that also contemplates bands of mortality risk at 80, 50 and 30 per cent.

Withdrawal of care would need government approval
An even more drastic scenario, contemplated but not yet a possibility, is that doctors could take people off life support to free up ICU space for someone deemed to have a higher chance of survival. For that to happen, the provincial government would have to enact new regulations.

That hasn’t happened yet, but one Ottawa woman says she already worries critical-care physicians are under increasing pressure from having to treat so many ICU patients.

Nadine Tabbara, left, poses with her father, Souheil Tabbara, 74, who entered the ICU at Ottawa Hospital on Feb. 1 with severe COVID-19. (Submitted by Tabbara family)
Nadine Tabbara said her 74-year-old father, Souheil, contracted COVID-19 and was admitted to the Ottawa Hospital intensive care ward Feb. 1 and put on a ventilator. He can’t speak or move his limbs.

Tabbara said doctors told her they want to withdraw life support because he is not getting better, but she worries the worsening COVID situation might be affecting his care.

“The ICU is full and the doctors are overwhelmed,” she said. “And I think they may be rushing to decisions like this.”

The hospital told the family its decision was medically motivated and it would have recommended the same approach even without COVID-19.

“Hospital capacity during the COVID-19 pandemic has not influenced access to critical care at all and does not influence decisions on moving to palliative care,” Ottawa Hospital said in a statement. “The decision to move patients from critical care to palliative care is one that no health-care worker takes lightly.”

With Ontario’s intensive care units approaching a breaking point, doctors are preparing to use triage protocols to determine which of the sickest patients there is capacity to save. 7:16

Protocol violates human rights, groups allege
One major problem with the province’s ICU decision-making protocol, a number of human rights groups and bioethics experts say, is that it risks only deepening inequities in health care.

Some of the more fiercely contested criteria for mortality risk, to be used in assessing critically ill COVID-19 patients with cancer or seniors suffering from a condition known as “frailty,” consider things like whether a patient is “capable of only limited self-care” or can dress, bathe, eat or walk without assistance, and whether they can handle their finances or go shopping.

Lawyer David Lepofsky calls Ontario’s ICU triage plan ‘raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer.’ (Simon Dingley/CBC)

“The only way to describe this is as raging, cruel disability discrimination, by doctors who say this is science and government that won’t even answer,” said lawyer and disability rights activist David Lepofsky, chair of the AODA Alliance, which has been campaigning to reform the Ontario ICU protocol since an early version emerged last spring.

“It explicitly makes having a disability count against you, and that is flagrantly contrary to the human rights code and the Canadian Charter of Rights and Freedoms.”

Pandemic made ‘exponentially scarier’
Lepofsky said doctors’ decisions on who lives and who dies won’t be subject to appeal, which denies patients and their families a fundamental right.

“If we had the death penalty, you’d have right to trial and due process,” he said.

Vivia Kay Kieswetter, a seminary student at Trinity College in Toronto and advocate for people with disabilities who has an autoimmune disorder, said reading Ontario’s ICU triage protocol has made the pandemic “exponentially scarier” for her.

“This is something that has been a source of additional stress and anxiety for those with disabilities over the course of this pandemic,” she said.

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Six of the bioethicists on the panel that helped draft the protocol published a dissent last week. They say the protocol doesn’t properly recognize that people with disabilities, Indigenous patients or people of colour could disproportionately be scored at a higher short-term mortality risk because of pre-existing inequities in society that weigh on their health “well before people are brought to the doors of an ICU.”

“Judgments about mortality risk in the short or long term, functional status or clinical frailty scores compounds health inequities by failing to … [consider] social disadvantage,” the dissenting bioethicists wrote.

‘Absolutely not … based on disability’
Ottawa’s Downar, one of the numerous doctors and ethicists behind the drafting of the protocols, replies that no one is being discriminated against based on a disability. Rather, the triage protocols try to save the most lives possible, he said, by prioritizing scarce ICU resources on patients who are most likely to survive.

Still, Downar acknowledged that the effect of using short-term mortality risk to triage patients for ICU care “is going to necessarily affect some demographic groups more than others.”

“What we lack is a way to correct for it that would be fair, objective and that everybody would agree on. It’s not that we haven’t looked…. But so far we have yet to see one that would be fair.”

The National Post April 14, 2021
Originally posted at https://nationalpost.com/news/canada/surging-like-absolute-crazy-ontario-hospitals-pray-they-dont-reach-last-resort-stage-in-third-wave ‘Surging like absolute crazy’: Ontario hospitals ‘pray’ they don’t reach last-resort stage in third wave
The triage protocol would mean choosing which patients should be offered potentially life-prolonging care

Author of the article: Sharon Kirkey
A tent city has been erected in the parking lot of Toronto’s Sunnybrook hospital to handle a surge in COVID-19 cases. PHOTO BY PETER J. THOMPSON/NATIONAL POST/FILE

The idea of people being removed from intensive care, unhooked from ventilators that might have saved them to make room for someone else more likely to survive is almost unfathomable, says the president and CEO of Canada’s largest university hospital.

I believe we’ll fight that one as long as humanly possible, and I pray we never get to the point of having to consider that, said Dr. Kevin Smith, head of Toronto’s University Health Network and co-chair of Ontario’s COVID-19 critical care table.

Staged withdrawals of life-support from people with low chances of survival are not part of a 32-page emergency triage protocol that would be enacted should Ontario ICU’s become saturated.

Only the provincial government can take the steps necessary to enable physicians to withdraw life-sustaining treatment without consent in order to give that care to someone with better prospects, the College of Physicians and Surgeons of Ontario said in a notice to physicians last week.

The triage protocol would, however, mean choosing which new patients should be offered potentially life-prolonging care who to admit and who not to admit to the ICU, whether for COVID or a heart attack.

Hospitals are working flat out to avoid enacting the protocol transferring hundreds of patients from hot spots to communities with extra space, cancelling non-urgent surgeries to free up 700 critical care beds, and redeploying nursing and other health-care staff.

Is it optimal and what we’d love to be doing? No. It’s where we find ourselves at this point in this rapid growth of the pandemic, Smith said.

Admissions to ICUs have not only been rising, people are arriving in emergency rooms needing intensive care immediately. The virus has attacked them, literally, so quickly, it over came them so fast that some are arriving in emergency desperately ill, before even having been tested for COVID, said Vicki McKenna, a registered nurse and provincial president with the Ontario Nurses Association.

As of midnight Monday, 1,892 people were in intensive care in Ontario hospitals, roughly a third 623 with COVID.

Should the number of people with or without COVID needing critical care approach 3,000, that’s when we’re going to be precariously close to having to consider other options, and much less attractive options, Smith said.

Those options include treating ICU patients outside ICUs, staffing ratios we wouldn’t be very pleased by or comfortable with, more field hospitals, bringing in doctors who don’t normally practise in hospitals, air lifting patients to Sudbury or Thunder Bay, and, of course, last resort, thinking about the triage tool, Smith said.