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Letter to Minister Elliott on potential human rights issues in the Ministry of Health’s COVID-19 response

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April 9, 2020

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Dear Minister Elliott:

I hope this finds you and your team safe and healthy. On behalf of the Ontario Human Rights Commission (OHRC), thank you for your ongoing efforts to address the COVID-19 pandemic.

The OHRC is ready and willing to assist the government to proactively consider, assess and address human rights concerns related to the COVID-19 pandemic. As you may know, last week, the OHRC released policy guidance to help Ontario adopt a human rights-based approach to pandemic management.

I am writing today to encourage the Ministry of Health (MOH) to engage with the OHRC on COVID-19 responses that raise potential human rights issues, including but not limited to:

  1. MOH’s development of a “clinical triage protocol”
  2. Collection and public reporting of human rights-based data related to COVID-19.

 

  1. Clinical triage protocol

The media has recently reported that Ontario is developing a clinical triage protocol to address limited critical care capacity in anticipation of a potential major surge in COVID-19 cases. Disability rights groups have contacted the OHRC because they are concerned that such a protocol could have a disproportionate and discriminatory effect on Ontarians with disabilities.

Development of such protocols is obviously complex, raising many difficult ethical and moral questions. However, it is vitally important that any process to develop clinical triage protocols include not only medical professionals and ethicists, but also human rights experts and representatives from vulnerable groups that may be disproportionately affected by its operation, including people with disabilities, older persons, Indigenous and racialized people, etc.

Consistent with the its Actions consistent with a human rights-based approach to managing the COVID-19 pandemic, the OHRC strongly recommends that MOH establish a mechanism to ensure human rights oversight and accountability before finalizing any clinical triage protocol. 

To this end, the OHRC would be pleased to support MOH by providing input on the protocol, either informally or as part of the ethics table established for the government’s coordinated COVID-19 response.

 

  1. Human rights-based pandemic data

The OHRC is also concerned that the COVID-19 pandemic may have a disproportionate and potentially discriminatory effect on Code-protected groups. As such, MOH must collect and publicly report on human rights data to properly assess and address these impacts.

It is clear that some vulnerable groups may have a more difficult time following public health guidance around isolation and physical distancing, which may increase their risk of contracting COVID-19. These vulnerable groups include people with disabilities and addictions, Indigenous and racialized people, women and children facing domestic violence, people who do not have access to stable housing, amongst others. At the same time, people from vulnerable groups may be over-represented in essential service professions (cleaners, cashiers, construction workers etc.) and tend to be recipients of essential services themselves.

The immediate risk to vulnerable groups is amplified when one considers pre-existing health inequalities and poor health outcomes within these communities, especially and including Indigenous communities. In the United States, for example, media reports indicate that Black Americans comprise 70% of reported COVID-19 deaths in Chicago while making up only 29% of the population. In Louisiana, where Black Americans make up one-third of the population, the media reports that they represent 70% of COVID-19-related deaths.

Unfortunately, unlike many jurisdictions outside Canada, MOH’s public data on COVID-19 is not disaggregated on human rights grounds and cannot be used to identify any disparate impacts on vulnerable groups. This is a serious problem and should be immediately remedied to ensure that Ontario’s short-term and long-term response to the pandemic is effective and equitable.

The OHRC has extensive experience advising governments and other public bodies on the collection and reporting of human rights-based data, and would be pleased to assist MOH in developing the necessary protocols in the context of COVID-19.

Please do not hesitate to contact me to discuss these issues further.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       Hon. Doug Downey, Attorney General
           Roberto Lattanzio, Executive Director, ARCH Disability Law Centre
           David Lepofsky, Chair, AODA Alliance
           OHRC Commissioners