Solicitor general brushes off disability advocate concerns about triage protocol

Asked about concerns raised by disability advocates for months that the provincial triage guidelines discriminate against them, Ontario's solicitor general got upset.

"There is no triage protocol being used," Sylvia Jones said, cutting off the question from QP Briefing. "I am very frustrated that you continue to suggest that there is a triage protocol in place in the province of Ontario in our hospitals. Talk to the hospital CEOs, talk to the minister of health. It is not accurate."

Jones and Health Minister Christine Elliott said the government has not approved a plan for deciding who lives and who dies should Ontario intensive care units run out of life-saving equipment.

But while it has not been officially triggered, the preparation for the nightmare scenario is real.

Hospitals received training on draft guidelines, which leaked in January, and are preparing to use them.

Doctors and nurses have told reporters that due to rising case counts in the third wave of COVID-19, triage decisions could be days away. Some say that while the protocol has not been implemented, decisions to ration or triage care are already happening, including the cancellation of scheduled surgeries.

And advocates for people with disabilities say they worry that if and when the time comes, they will be seen as less deserving of care than someone without disabilities, because of two key parts of the protocol.

One is the inclusion of the "clinical frailty scale," which outlines how dependent people are on others to live their lives.

It "asks questions like, can you get dressed yourself, without assistance? Can you go grocery shopping without assistance? Can you use a telephone without assistance?" said Mariam Shanouda, a lawyer with Toronto's ARCH Disability Law Centre. "And if you answer no, I can't do any of these things without assistance, then you are less likely to access critical care. This is disability discrimination in a nutshell."

The other major issue is that doctors are asked to estimate patients' likelihood of surviving the next 12 months. That timeline is too long, advocates say, and could force medical staff to "guesstimate"

"Guessing is not science," said David Lepofsky, chair of the AODA Alliance. "And it doesn't become science because the person doing it, or who's being mandated to do it, has a white coat on and a stethoscope."

Another issue is that advocates don't know whether the protocol from January is unchanged, or whether a new version is being prepared. Lepofsky said the government refuses to answer any of his calls.

"The solution is for the government to immediately make public their step-by-step plan for rolling this out, which they obviously have, so we can know what they're planning to do," he said.

The Ministry of Health should speak directly to disability advocacy groups like his, "so we can have input into this, rather than having to communicate with the human shields behind whom they're hiding, such as the Bioethics Table," he said.

And each hospital that's done a triaging drill should make the results of that drill public, "so the public can know how much these simulations for triage might vary, depending on which hospital you happen to go to," Lepofsky said.

Opposition leaders also called for transparency.

Green Leader Mike Schreiner said he shares the concerns of disability advocates, and argued the government should release the guidelines publicly.

He also noted that ODSP payments have not gone up recently, despite the fact that "Ontarians with disabilities have borne a disproportionate burden in this pandemic."

Liberal health critic John Fraser said Ontario is "dangerously close to asking clinicians to decide who gets care and who doesn't. The government needs to be open and transparent about the status of the triage protocol. I think the disability advocates have a legitimate concern. The government should have been listening from the start and needs to engage with them now."

In question period on Wednesday, Joel Harden, the NDP critic for accessibility and persons with disabilities, quoted Dr. David Neilipovitz, the ICU director at the Ottawa Hospital, who told CBC: "'It would be naive for us to think that triage or changes in the standard of care have not already come about.' Let’s think about that," he said.

"Yesterday, the minister rose in this house and said there is no clinical triage protocol, but we know that hospitals received one on January 13. We also know that a training was done for medical professionals on YouTube on the 23rd of January. Speaker, I want to ask the minister, who is very well versed in these issues: what instructions have been sent out and drafted to emergency medical technicians, ambulance services or health professionals about who will live and who will die in our ICUs?"

Elliott repeated that there is no official triage protocol yet.

"There have been discussions," she said. "I understand that there were a number of disability groups that were concerned with respect to a previous draft that was prepared earlier this year. That was then reviewed with the human rights commission. There have been a number of discussions about modifications to it. But nothing has been activated, nothing has been approved by this government."

It was indeed reviewed with the Ontario Human Rights Commission in December, but the organization still disapproves. Chief Commissioner Ena Chadha sent a letter to Elliott in March outlining concerns with the draft protocol and called on the government to publicly release it.

Harden said "there are no plans" is "not an acceptable answer."

Elliott disagreed.

"The rights of people with disabilities has been one of my strongest passions since I got to this place 15 years ago," she said, "and I don’t need to take any instructions from anybody—"

NDP Leader Andrea Horwath interjected, "Ha!"

"—including the leader of the Official Opposition, about this issue," Elliott finished.