On October 16, 2020, the OHRC wrote to the Minister of Health raising concerns about the proposed framework for a COVID-19 triage protocol to allocate limited critical care services in a potential major surge in COVID-19 cases. Read the letter.
The Honourable Christine Elliott
Minister of Health
College Park 5th Floor, 777 Bay Street
Toronto, ON M7A 2J3
Dear Minister Elliott:
RE: Bioethics Table recommendations and proposed framework for a COVID-19 triage protocol
I am writing to you today about the government’s COVID-19 Bioethics Table’s recommendations and proposed framework for a COVID-19 triage protocol to allocate limited critical care services in a potential major surge in COVID-19 cases.
First, allow me to introduce myself as the recently appointed Chief Commissioner of the Ontario Human Rights Commission (OHRC). Since the outset of the COVID-19 pandemic, the OHRC has called for human rights values and principles to guide responses and recovery planning and affirmed the importance of consultation with impacted communities. You may recall my predecessor, Chief Commissioner Renu Mandhane, wrote to you on April 9, 2020, calling for a human rights-based approach to developing a triage protocol.
The OHRC was pleased when the Bioethics Table reached out for our input to ensure a consultative and principled methodology to address the human rights dimension of the pandemic. We welcomed the opportunity to help facilitate and participate in discussions with stakeholders, Ontario Health and the Bioethics Table on the triage protocol.
During these discussions, human rights stakeholders, including ARCH, the AODA Alliance and the Canadian Association for Retired Persons raised serious concerns that the versions of the protocol circulated in March and July disproportionately impacted vulnerable groups and violated human rights. The OHRC generally supports the concerns and recommendations that these, and other stakeholders made in their presentations and submissions to government and the Bioethics Table.
In September, the Bioethics Table informed stakeholders that it submitted recommendations and a proposed framework to your Ministry and Ontario Health. The Bioethics Table also shared the recommendations and proposed framework confidentially with the OHRC. The OHRC and stakeholders have significant concerns that the Ministry has not released the recommendations and proposed framework for public feedback, and in our view, this is particularly urgent and necessary in light of the emerging “second wave” of COVID19 cases.
Further, while the OHRC commends the Bioethics Table for holding productive consultations and incorporating into the proposed framework many of the human rights principles and recommendations identified by stakeholders, the OHRC still has concerns which we have shared with the Bioethics Table and Ontario Health.
Since we understand that the recommendations and proposed framework are now with the Ministry of Health awaiting further direction, the OHRC is calling on the Ministry of Health to:
- Ensure the protocol recognizes that human rights is the primary guiding principle and law in accordance with the primacy clause under section 47 of Ontario’s Human Rights Code
- Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge
- Exclude the Clinical Frailty Scale (CFS) and any other clinical assessment factors and tools that are not validated for critical care resource allocation. The Bioethics Table recognizes the CFS was designed and validated to help identify treatment plans and accommodation supports for frail patients, and not for critical care triage. Used as a triage tool, the CFS would likely disproportionately impact Code-protected groups and may not be in keeping with the Code including the duty to accommodate
- Define short-term predicted mortality as the predicted risk of death in the initial weeks, and not twelve months after the onset of critical illness. The Bioethics Table recognizes that relatively little mortality occurs between six and twelve months.
We also agree with the Bioethics Table’s recommendations that call on the Ministry of Health and Ontario Health to:
- Issue clear communications that health care providers must disregard and destroy the March 28 version of the protocol
- Circulate the proposed framework, including the clinical assessment factors and tools, for public feedback and independent legal review
- Convene a multidisciplinary panel, including experts in human rights and law to further develop, or refute, the clinical factors and tools identified in the proposed framework
- Engage health care partners to develop guidance for implementing the protocol including clinical operations, communications, training, patient and clinician supports, data collection and monitoring
- Provide for governance and accountability mechanisms including responsibility for initiating the protocol, data collection and independent monitoring for adverse consequences
- Sustain equitable COVID-19 prevention efforts to avoid the need to initiate the protocol, and mitigate disproportionate impacts on vulnerable groups
- Meaningfully engage vulnerable groups, including Indigenous communities, Black and racialized communities, persons with disabilities, older persons and others for their perspectives and participation throughout the process to finalize and implement the protocol.
It is vitally important that the COVID-19 triage protocol accounts for the needs, capacities and circumstances of all vulnerable groups. Indeed, it is a matter of life and death. The OHRC will continue to make itself available to work with and support the Ministry of Health and Ontario Health on this important endeavour and I would welcome the opportunity to meet you and discuss next steps at your earliest convenience.
Please be advised that the OHRC may make this letter public in keeping with its statutory mandate under section 29 of Ontario’s Human Rights Code.
Ena Chadha, LL.B., LL.M.
cc: Helen Angus, Deputy Minister, Ministry of Health
Matthew Anderson, President and CEO of Ontario Health
Jennifer Gibson, Co-Chair, COVID-19 Bioethics Table
Hon. Doug Downey, Attorney General
David Corbett, Deputy Attorney General, Ministry of the Attorney General