Mr. Matthew Anderson
President and CEO
1075 Bay Street
Toronto, ON M5S 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:
- Ontario Health’s 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
- Lack of disaggregated data collection during the COVID-19 pandemic is putting the health and well-being of Code-protected groups at heightened risk
- 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
- 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:
- Immediately and publicly rescind Ontario Health’s 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 Ontario’s 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:
- 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
- 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.
- 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 Health’s 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:
- Take immediate steps to clearly outline the nature and scope of the proposed collection of disaggregated socio-demographic data
- 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
- Release a detailed and comprehensive data collection plan that includes collection mechanisms and timelines for the pandemic
- Provide specific information on how Ontario/Ontario Health will report publicly on the data collected during the pandemic
- 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.
- 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 everyone’s right to health includes a government’s 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 person’s disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.
The OHRC urges Ontario Health to:
- 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.
- 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:
- 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 people’s 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 Ontario’s human rights obligations.
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