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One Year After Disability-Discriminatory Critical Care Triage Protocol was Secretly Sent to Ontario Hospitals, Disability Advocates Sound the Alarm About the Danger of Disability Discrimination in Access to Health Care as the Omicron Variant Rapidly Overloads Hospitals


January 13, 2022 Toronto: As the Omicron variant rapidly spreads, the danger that some patients will lose their lives because hospitals are overloaded grows closer. Sounding the alarm, a major disability coalition wrote Ontario’s Health Minister, calling for immediate action to ensure that patients with disabilities face no disability discrimination in access to health care. The AODA Alliance’s January 12, 2021 letter below, warns:

“The highly-contagious Omicron variant is spreading like wildfire. Hospital admissions of patients with COVID-19 are daily breaking records. Intensive care beds with COVID-19 patients are shooting up at a frightening rate.

The media reports that hospital staffing levels are impaired by COVID-19-related absences, that emergency rooms are more backed up than ever, and that demand for ambulances is outstripping supply. People who are unvaccinated or who have not gotten a booster shot are at greater risk. The Ontario Government has still not ensured that people with disabilities can get barrier-free access to COVID-19 vaccinations.”

The AODA Alliance warns that there is an accelerating danger of disability discrimination against vulnerable patients with disabilities in access to life-saving health care, because:

1. Before the COVID-19 pandemic began, many pre-existing disability barriers were rampant in Ontario’s health care system. The pandemic made this worse.

2. A disability discriminatory Ontario Critical Care Triage Protocol has been embedded in hospitals for a year. One year ago today, that Protocol was secretly sent to Ontario hospitals. The Ford Government never made it public. It was leaked to the AODA Alliance, and is posted on our website.

3. There is a real danger of disability discrimination by ambulances and emergency medical technicians as the demand for hospital beds and ambulances skyrockets. The Ford Government has not made public any directions regarding triage for EMTs and ambulance services.

4. Some kind of triage is necessarily inherent during the current cancellation of “elective” surgery. This will endanger the lives of some patients. There is no public protocol on how that triage is being conducted, nor is there any assured due process for patients whose lives are at stake.

“We have offered the Ford Government concrete, constructive recommendations for immediate action to protect patients with disabilities, but over the past year and a half, the Ford Government refused to answer any of our thoroughly-documented letters,” said AODA Alliance Chair David Lepofsky. “This issue must be taken out of the back rooms and openly debated in the Ontario Legislature.”

Contact: AODA Alliance Chair David Lepofsky
Twitter: @aodaalliance

For more background on this issue, check out the AODA Alliance websites health care page, detailing its efforts regarding critical care triage and generally, its to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

Text of The AODA Alliance’s January 12, 2022 Letter to Ontario’s Health Minister

Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Society for All People with Disabilities Web:
Twitter: @aodaalliance

January 12, 2022

To: The Hon. Christine Elliott, Minister of Health
Via email:
Ministry of Health
5th Floor
777 Bay St.
Toronto, ON M7A 2J3

Dear Minister,

Re: The Danger of Disability Discrimination in Access to Health Care During the Pandemic’s Omicron Surge

We need you to immediately take action now to protect vulnerable people with disabilities from suffering disability-based discrimination in access to health care during the escalating health care crisis. The highly-contagious Omicron variant is spreading like wildfire. Hospital admissions of patients with COVID-19 are daily breaking records. Intensive care beds with COVID-19 patients are shooting up at a frightening rate.

The media reports that hospital staffing levels are impaired by COVID-19-related absences, that emergency rooms are more backed up than ever, and that demand for ambulances is outstripping supply. People who are unvaccinated or who have not gotten a booster shot are at greater risk. The Ontario Government has still not ensured that people with disabilities can get barrier-free access to COVID-19 vaccinations.

There is a clear and present danger of disability discrimination in access to health care. We present several reasons for this concern. We then list constructive, concrete action we ask you to now take.

1. Many Pre-Existing Disability Barriers are Rampant in Ontario’s Health Care System

Before the COVID-19 pandemic, Ontario’s health care system was replete with serious disability barriers. This is the finding of the Government-appointed Health Care Standards Development Committee in its initial report to the Government that was made public on May 7, 2021, two thirds of a year ago. It is amplified by the AODA Alliance’s August 3, 2021 brief to the Health Care Standards Development Committee. The Ontario Government has in place no comprehensive plan for removing those disability barriers.

2. A Disability Discriminatory Critical Care Triage Protocol Is Embedded in Ontario Hospitals

Making this worse, a year ago tomorrow, on January 13, 2021, the Ontario critical care triage protocol was sent to Ontario hospitals, on your Government’s watch. As far as we have seen, the Government has still never made it public. It was leaked to us, and has been available to the public on the AODA Alliance website. The Government has not denied the authenticity of that document.

The official Ontario critical care triage protocol clearly directs disability discrimination, contrary to the Ontario Human Rights Code and the Charter of Rights. Under that protocol, if critical care must be rationed and if a cancer patient needs critical care, and if critical care triage has been invoked due to overloads at ICUs, those patients with disabilities will be deprioritized if a patient is Completely disabled and cannot carry out any self-care; totally confined to bed or chair. As another example that would be directed if critical care triage is invoked, if a patient needing critical care is over 65 and has a progressive disease (like MS, arthritis or Parkinsons), their access to critical care is reduced depending on how few of eleven activities of daily living they can perform without assistance. This includes dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their finances. The disability discrimination could not be clearer and more obvious, notwithstanding denials by one of the protocol’s authors.

Last winter, during an earlier COVID-19 surge, it was feared that Ontario would have to formally invoke its secret critical care triage protocol if ICU COVID patients numbered around 900, though no precise target number was set. In the past month, the number of ICU patients with COVID has raced up from under 200 to 505 as of today, with no end in sight. With a record 3,448 patients with COVID-19 in hospital, this escalating number will grow.

We anticipate that it may be necessary to formally trigger critical care triage protocol in Ontario even if COVID-19 patients in ICUs number less than 900. This is because there is a real potential that Ontario’s hospital ICU capacity is now lower than it was last spring. So many hospital staff are isolating at home with COVID.

Strong action is needed now to root out the disability discrimination that this has embedded within the health care system. That protocol has been left in place to fester unchecked for a full year, leading doctors to think that the disability-discriminatory conduct that it mandates is perfectly lawful and ethical.

More fuel has stoked the danger of this disability discrimination fire. Last year, your Government let hospital staff be trained on how to use the disability-discriminatory Ontario critical care triage protocol. That training was seriously deficient and misleading. For example, a January 23, 2021 webinar provided training for front line hospital physicians on the secret Ontario critical care triage protocol. It has been viewed over 2,300 times. That webinar did not alert physicians to the serious disability discrimination concerns that had been raised with Ontario’s critical care triage plans. Participants were told that Ontario’s critical care triage protocol was the result of consultations with the Ontario Human Rights Commission and community groups. They were misleadingly not told that the Ontario Human Rights Commission and community groups like the AODA Alliance publicly objected to key parts of the triage plan and the secretive way it has been developed.

The Government has strong reasons for retracting and replacing Ontario’s secret critical care triage protocol. Almost one year ago, We again documented in our February 25, 2021 report on critical care triage that it is seriously flawed. We warned physicians that they would use that protocol at their peril. Moreover, last spring, objections to Ontario’s critical care triage protocol were publicly raised by six members of the Government-appointed Bioethics Table. Your Government appointed that Bioethics Table to advise The Government on how to design a critical care triage protocol. The concerns of those six members of the Bioethics Table echoed disability community objections.

3. There is a Real Danger of Disability Discrimination by Ambulances and Emergency Medical Technicians

There is a real risk that directions are now also in place to emergency medical technicians, such as ambulances, to triage which cases are brought to hospital and given critical care supports en route there. We have seen nothing in place to ensure that disability discrimination is prevented here.

Normally, emergency medical technicians (EMTs) may start critical care supports for a patient en route to hospital, if the patient needs it. The public expects that if an ambulance arrives in an emergency to help a person, the EMTs will do all they can to help save the patients life. The public does not expect that an EMT would unilaterally refuse to provide a life-saving measure that the patient needs.

The national news story that ran on the April 18, 2021 edition of CBCs 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. For example, EMTs arriving at a patient’s home to respond to a medical emergency may not resuscitate some patients.

In the April 18, 2021 edition of CBC TVs 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 Dont 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.

The Ford Government has failed to release a single document or record in response to our inquiries about this. It has not answered a Freedom of Information application filed by AODA Alliance Chair David Lepofsky on this last May. We wrote You about this worrisome danger back on February 25, 2021. You and your Government have never answered. Since then, the danger that ambulances in Ontario are now engaging in some form of life-threatening triage at patients’ homes is all the more likely since the total number of COVID cases in hospitals is at an all-time high, and is daily increasing.

4. Triage is Inherent During the Current Cancellation of “Elective” Surgery

It is widely reported that elective surgeries are being cancelled in Ontario due to the hospital overloads. The delay of surgery, even if labelled “elective surgery”, can end up costing some patients their lives. The decision of whose surgery gets delayed and whose gets prioritized thereby amounts to a form of triage that, like critical care triage, is life-threatening for some patients.

We are aware of no public policy or triage protocol governing this, nor any due process to protect patients. We need immediate public accountability of who is deciding who lives and who dies as a result, and on what criteria or basis those decisions are being made. There should be a public accounting of how many lives are lost as a result.

We have a well-founded concern that in such decisions, disability discrimination could take place. The Government and its key critical care team have given a strong signal to the medical profession for at least one year in the Ontario critical care triage protocol that disability discrimination in access to life-saving critical care is perfectly acceptable. The trickle-down harm in attitudes towards the lives of patients with disabilities is incalculable.

5. Constructive Concrete Recommendations for Urgent Action

Please take these actions now:

1. Make public the current version of the critical care triage protocol, all reports and recommendations regarding critical care triage by the Government’s external Bioethics Table since September 11, 2020, the Governments plan of action for rolling out critical care triage if needed, and the content and results of drills or simulations of critical care triage held at any Ontario hospitals.

2. Make public all directions and draft directions to ambulances and other emergency medical services on triaging who is to be brought to hospital, and to whom critical care is to be refused.

3. Remove unlawful discrimination, including disability discrimination, from the January 13, 2021 Critical Care Triage Protocol, and from any protocols or directions to ambulances and other emergency services.

4. Do not give a financial blank cheque to doctors and hospitals in advance (indemnification), nor should the College of Physicians and Surgeons of Ontario give doctors a regulatory blank cheque, if they rely on disability-discriminatory directions.

5. Immediately hold a public consultation on how critical care triage should be conducted, as well as triage over so-called “elective surgery.”

6. Ensure that Ontarios critical care triage plan and protocol are properly prescribed by law, by introducing legislation on critical care triage for debate in the Legislature, rather than dealing with it by an internal memo to hospitals.

7. Publicly report on how decisions are being made on who gets prioritized or deprioritized for “elective surgery” while such surgeries are cancelled or cut back, and make public a clear, swift and fair avenue for patients to appeal such decisions, especially if they endanger their lives.

8. If critical care triage is formally invoked, publicly account on a daily basis on the number of patients who need critical care but are refused it over their objection.

9. Similarly, publicly Account for the number of lives lost due to implicit triage in access to so-called “elective surgery” while such surgery is cancelled or restricted.

There is a pressing need for a full public accounting and debate of these issues, before it is too late. We regret that up until now, your Government has decided not to be open and accountable on this issue, in the hope that it will go away. There has been no fulsome debate on this in the Legislature. You have not answered any of our nine earlier letters to you over the past seven months. Those letters detail serious and well-researched objections to disability discrimination in Ontarios critical care triage plans, including the AODA Alliances September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter, its February 25, 2021 letter and its April 26, 2021 letter to you. People with disabilities deserve better.

We are always eager to help you and the Government with these issues. Please stay safe.


David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance CC:
Premier Doug Ford; Dr. Catherine Zahn, Deputy Minister of Health Raymond Cho, Minister of Seniors and Accessibility
Carlene Alexander, Deputy Minister for Seniors and Accessibility
Alison Drummond, Assistant Deputy Minister for the Accessibility Directorate,
Patricia DeGuire, Chief Commissioner of the Ontario Human Rights Commission
Robert Lattanzio, Executive Director, ARCH Disability Law Centre